Decision #61/09 - Type: Workers Compensation
Preamble
The worker filed a claim with the Workers Compensation Board (“WCB”) for a left elbow injury which he related to his work duties on October 1, 2008. The WCB accepted that the worker suffered an injury to his elbow on October 1, 2008 but determined that he was not entitled to wage loss or medical aid benefits. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on April 23, 2009 to consider the matter.Issue
Whether or not the worker is entitled to wage loss and medical aid benefits.Decision
That the worker is entitled to wage loss benefits for October 7 and 8, 2008 and further medical aid benefits.Decision: Unanimous
Background
The worker claimed that he injured his left arm, left elbow and low back on October 1, 2008 when he overextended while loading pieces of a deck by hand onto a trailer.
The employer’s accident report dated November 19, 2008, stated that when it started to get cold outside, the worker said it was time to start collecting employment insurance. The worker complained about a sore arm and elbow in October 2008 but did not relate his difficulties to a specific injury. The employer acknowledged that the worker helped four co-workers move a deck but no injury was reported at that time. On November 7, 2008, the worker was terminated from employment as he did not want to work past 3:00 p.m. The employer reported that the worker had been renovating his house.
A Doctor’s First Report dated November 12, 2008 stated that the worker sought treatment for an accident which occurred on September 25, 2008 and was described as “Lifting deck and got sudden pain.” The diagnosis was a left elbow sprain and the worker was advised that he was capable of alternate or modified work but to avoid use of his left arm for 10 days.
A WCB adjudicator contacted the worker on November 25, 2008 to gather additional information. The worker indicated that the date of accident was October 1, 2008. He was cutting a deck as the equipment was broken. When he lifted, he overstretched his arm. He mentioned the injury to his boss on the date of accident. He continued working after the injury but had to miss work on October 7 and 8, 2008 as his elbow was sore. He did not see a doctor because he did not want to lose his job and wanted to make a good impression. He thought his symptoms would eventually resolve. On November 7, 2008, his employer wanted him to perform heavier duties but he could not do so because his elbow was sore. He pushed snow to clear pathways and had difficulties doing this. He could not lift a washer/dryer due to his injury and was fired because of it. He said his doctor had indicated September 25 as the date of accident because he may have gotten mixed up in his dates. His first doctor’s appointment was on November 12, 2008. The worker indicated that he complained of elbow pain to his boss and told him that he was having difficulty with driving and would often have to drive with one hand. He had not worked on his own home since October 1, 2008 as he could not use a hammer or a drill. Prior to his injury, he did work on his own home.
On November 25, 2008, the employer’s brother advised the adjudicator that four people were working together on the date of accident but he did not see anyone getting hurt. The worker helped him lift an air conditioner one hour later but did not mention any difficulties. About five hours later, the worker indicated that he had a sore arm from lifting. The employer noted that the worker would state that his arm was sore and stiff a few times but would continue to help with duties as required. From the date of accident to when he was off, the worker complained about a sore arm 5 to 6 times. The worker never advised that he could not perform a duty because of an injury or because he was in too much pain.
On December 2, 2008, a different employer representative advised the WCB that the worker never mentioned that his arm pain was preventing him from lifting the washer/dryer. The reason for not wanting to do this was because he wanted to leave earlier.
On December 8, 2008, the adjudicator accepted that the worker suffered a workplace injury on October 1, 2008 while lifting pieces of a deck but determined that he was not entitled to healthcare or wage loss benefits for October 7 and 8, 2008 or from November 7, 2008 to the present. As the worker was able to continue with his regular job duties until November 7, 2008, the day he was let go from employment, the adjudicator was unable to establish a relationship between the October 1, 2008 injury and the medical treatment he received five days after he was terminated.
In a submission to Review Office dated December 22, 2008, a worker advisor argued that the worker’s ongoing symptoms and restrictions were related to his compensable injury. The worker advisor noted that the worker’s regular job duties involved basic tasks that were not physically demanding and that he was only able to continue working by relying on his uninjured arm and modifying his work to prevent exacerbating his injury. He noted that the employer’s brother confirmed that the worker complained of ongoing symptoms and restrictions following his accident. He indicated that the worker refused to move the washer/dryer because his compensable condition prevented him from accommodating the request. The worker advisor submitted that the worker delayed in seeking medical attention as he did not have a Manitoba health card and therefore did not have a reasonable means to have his injury assessed. He submitted that the medical information supported that the worker’s ongoing difficulties were consistent with his compensable injury.
On January 29, 2008, Review Office determined that the worker was not entitled to wage loss or medical aid benefits. Review Office placed weight on the following evidence to establish that the worker did not have a loss of earning capacity due to his October 1, 2008 compensable elbow injury:
· File documentation that the worker was renovating his home;
· The worker continued to perform his regular duties nor was there indication that he refused to perform any duties as a result of his elbow difficulties.
· The worker reported to his co-worker and WCB that he was injured on October 1, 2008;
· The worker refused to assist with the delivery of the washer/dryer because he wanted to leave work at 3:00 and there was no mention of his injured elbow at that time according to the employer.
· There was no medical or other evidence that the worker was not capable of continuing his work duties. He worked until November 7, 2008 when his employment was terminated.
Review Office also added that it could not be established that the medical treatment beginning on November 12, 2008, five days after termination of employment and 42 days after the work related incident, was a direct result of the October 1, 2008 incident.
On February 23, 2008, the worker appealed Review Office’s decision to the Appeal Commission and a hearing was arranged.
Reasons
Applicable legislation:
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Pursuant to Section 37 of the Act, where as a result of an accident, a worker sustains a loss of earning capacity or an impairment or requires medical aid, compensation is payable. In order for compensation to be payable, the loss of earning capacity must be causally related to the workplace accident.
Worker’s position:
The worker was self represented at the hearing. He submitted that he was employed as a handyman/carpenter for the employer and that he did most of what was asked of him. On October 1, 2008, he was asked to help move a deck by cutting it into four pieces and then loading it onto a trailer. He overstretched his left elbow while trying to lift a piece of the deck and was left with pain on the inner part of his elbow and reduced strength in his left arm. He has continued to experience pain in that same location, particularly whenever he rotates his arm. At the time of the hearing, he still had pain, although it was less than it was before. As this was a work related injury, he submitted that it was only fair that WCB should cover him. It was not so much money that he was looking for in this appeal, but he was primarily seeking medical treatment so that he could get better.
Analysis:
The WCB has accepted that the worker suffered an injury to his left arm and elbow when loading pieces of a deck onto a trailer on October 1, 2008. It has determined, however, that the injury did not result in any entitlement to healthcare or wage loss benefits. The question for this panel to decide is whether the worker suffered a loss of earning capacity or requires any medical aid as a result of the October 1, 2008 injury.
In order to be entitled to wage loss benefits, the worker’s injury must have impaired his ability to earn income. At the hearing, the worker confirmed that although he had pain in his left elbow and arm after the lifting incident, he was able to continue working on October 1, 2008. It was a Wednesday. They transported the deck and he was able to assist in unloading the deck at the new location. On Thursday and Friday, the worker came to work and was able to modify his duties so that his left arm pain did not prevent him from working. The pain got worse over the weekend, and when he came in to work on Monday, he told his employer that his arm was sore. The worker’s evidence was that on Tuesday and Wednesday, October 7 and 8, 2008, he did not come in to work due to the pain in his arm. This evidence is consistent with information provided by the employer to the WCB on December 3, 2008 which indicated that on the worker’s time records for October 7 and 8, he logged: “sore arm - sick for both days.”
On Thursday, October 9, 2008, the worker reported for work and did not miss any more time from work due to his left arm injury. He claimed that although he was still experiencing pain and loss of strength in his arm, he was able to continue to perform his job duties by limiting and modifying the use of his left arm.
The panel finds that the worker’s absence from work on October 7 and 8, 2008 can be directly related to the compensable injury which the worker suffered on October 1, 2008 and he is entitled to wage loss benefits for those two days.
At the hearing, the worker indicated that he was unemployed for most of the time since he was fired by his employer on November 7, 2008. Only in the last few weeks has he found new employment as a handyman. When asked whether or not he could perform his new duties, the worker indicated that he has been able to do so. He still feels some pain, although it is better than it was near the time of the accident. He also wears a tensor bandage, which helps with his elbow. When asked why he did not seek new employment earlier, the worker’s response was that he felt he had to heal before he could work for a new employer.
With respect to the termination of his employment, the worker has alleged that he was fired due to his inability to move a washer and dryer because of the pain in his elbow. The panel finds, however, that there were many more factors at play in the termination. Correspondence from the employer clearly indicates dissatisfaction with the worker’s attitude. It would appear that the feeling was mutual as the worker indicated at the hearing that when he consulted the Labour Board regarding potential remedies for the termination, he said that he definitely did not want his job back. There is discrepancy as to why he was terminated, and the employer alleges that the worker refused to move the washer and dryer because it was a Friday afternoon and it would take too long to perform that duty. On a balance of probabilities, the panel finds that the reasons for the termination of employment were multi-factoral and we find that the worker’s loss of employment cannot be attributed to the compensable injury.
The medical reports from the physician dated November 12, 2008 and November 25, 2008 both indicate that despite the elbow injury, the worker was still capable of alternate or modified work. Indeed, the worker was able to continue work for 5 weeks after the injury, with only two sick days taken. In the panel’s opinion, although the worker continued to experience symptomatology in his left arm, this did not impair his ability to earn income equivalent to what he was earning from the accident employer at the time of the incident. Accordingly, the worker is not entitled to any further wage loss benefits.
With respect to medical aid, the left elbow condition identified by the physician and the physiotherapist in the November, 2008 medical reports on file is consistent with the injury described by the worker as having occurred on October 1, 2008. We therefore find that this condition is related to the compensable injury and that the worker is entitled to appropriate medical treatment for that injury.
The worker’s appeal is allowed.
Panel Members
L. Choy, Presiding OfficerA. Finkel, Commissioner
D. Zirk, Commissioner
Recording Secretary, B. Kosc
L. Choy - Presiding Officer
Signed at Winnipeg this 16th day of June, 2009