Decision #109/10 - Type: Workers Compensation

Preamble

The employer is appealing a decision made by Review Office of the Workers Compensation Board which determined that the worker suffered a loss of earning capacity as a result of his compensable injury. A file review was held on November 3, 2010 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits to September 21, 2009 inclusive.

Decision

That the worker is not entitled to wage loss benefits to September 21, 2009 inclusive.

Decision: Unanimous

Background

The worker sustained a crush injury to his right thumb in a work related accident on September 12, 2009.

When speaking with a WCB adjudicator on September 21, 2009, the worker provided the following information:

  • after the September 12, 2009 accident, he reported to the company nurse. His thumb was iced and the nurse glued the area. The worker stopped working after this. He was off work the next day on a scheduled day off.
  • on September 14, 2009, he returned to work and was given a job in the laundry area to hand out balaclavas. He did not do much and worked a full shift.
  • on September 15, 2009, the worker attended a walk-in clinic and was sent to a hospital emergency facility for x-rays. He was told that he did not have a fracture. The worker said he did not discuss light duty work with the doctor and was told to take days off work. He then took the doctor's note to his employer and he was offered one handed duties. The worker stated that he refused to perform the duties as he had been given an injection and was prescribed Tylenol 3.
  • the employer told him that the attending physician was contacted and the doctor indicated that he could do one handed light duty work. The worker indicated that he had a doctor's note and the union advised him to follow his doctor's note.

A progress report dated September 15, 2009, indicated that the worker complained of severe pain in his right thumb and could not move it. Objective findings outlined were as follows:

"R thumb swollen and red, palmar aspect PIP joint w/ skin injury over same joint. Doesn't seem to ooze. Flap of skin is covered by Band-Aid. Periph pulsat intact, Sens'n intact. V. tender to touch thumb, esp vein. Mov't v. limited."

The physician noted that he was sending the worker for an x-ray to exclude fissure, fracture or tendon injury. He noted that he filled out paperwork for the employer.

In a note to file dated October 2, 2008, the WCB case manager documented that he spoke to the worker's treating physician. He was advised that the worker had a crush injury to his thumb and no stitches were required. The worker was advised not to use his right hand and that he was capable of one handed duty work. The physician said he advised the employer of this.

In a letter dated October 2, 2009, the worker was advised that the WCB was accepting responsibility for his right thumb difficulties but he was not entitled to wage loss benefits effective September 15, 2009. Based on information obtained from the attending physician, the case manager outlined the opinion that the worker was capable of performing one handed duty work as of September 15, 2009. As the worker chose not to participate in the one handed duty work, he was not entitled to wage loss benefits under WCB policy. On February 22, 2010, the worker's union representative appealed the decision to Review Office. He submitted in part that the worker had medical authorization to be off work for the week and that the ability to drive while taking T-3's was contraindicated.

A submission by the employer's representative dated April 21, 2010 indicated that they agreed with the WCB case manager's decision not to provide wage loss benefits effective September 15, 2009. In support of its position, the representative noted that the company nurse contacted the worker's physician on September 15, 2009 and he agreed that the worker could continue working provided that he use his left hand only. This was corroborated in the September 24, 2009 conversation between the physician and the WCB case manager. As the employer was able to accommodate this restriction and the worker refused, it was felt that the worker's appeal should be denied in accordance with WCB policy.

On April 29, 2010, Review Office determined that the worker is entitled to wage loss benefits to September 21, 2009 inclusive and final. Review Office agreed with the union representative's position that the medication taken by the worker was such that it was reasonable for the worker not to drive a vehicle while taking his prescribed medication. Review Office felt that the worker was capable of returning to light duty work on September 22, 2009 with no use of his right hand. This was supported by the therapist who noted on September 21 that the worker was capable of returning to work with no use of the injured hand. On May 18, 2010, the employer's representative appealed Review Office's decision and a file review was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.

Employer's Position

The employer was represented by an advocate who provided written submissions in support of the employer's appeal. The employer's advocate noted that medical information confirms that the worker was authorized to work in the sedentary duties provided by the employer, he refused to work and accordingly should not be entitled to wage loss benefits for this time period. She also noted that the employer's nurse contacted the treating physician who advised that the worker had a crush injury to thumb, no stitches were required, the worker could not use his right hand, and the worker was capable of one handed duties. The employer's advocate submitted that the worker did not advise the employer that the reason for refusing the sedentary duties was concern about driving to work and that this concern was not mentioned until months later when the matter was considered by Review Office. In her submission she advised that the worker had attended a workplace meeting on September 17, 2009 and argues it is unclear why he couldn't get to work or perform the one-handed duties yet could attend meetings at work. She asked that the Review Office decision be reversed.

Worker's Position

The worker was represented by an advocate who provided written submissions to the Appeal Commission. The worker's advocate agreed with the Review Office decision that the worker was entitled to wage loss benefits. He noted that the worker:

· was twice denied the opportunity to access medical treatment.

· was initially offered light duties without knowledge of the severity of the injury.

· was prescribed medication which warns of dizziness, lightheadedness, and drowsiness.

· was advised by a physician to remain off work.

The worker advocate submitted that it would be inappropriate for the worker to be operating any machinery (his car) while under the influence of this medication and that it was not unreasonable for the worker to remain off work given the nature of the injury and the medications prescribed by the doctor. He asked the panel to find that the worker is entitled to wage loss benefits.

Analysis

The issue in this case was whether the worker was entitled to wage loss benefits to September 21, 2009. For the employer to be successful, the panel must find that it was unreasonable for the worker to refuse an alternate light duty position. The panel did find that it was unreasonable for the worker to refuse the light duty position offered by the employer.

In arriving at this decision the panel relies upon the following information:

  • while the accident occurred on Saturday September 12, 2009, the worker was able to work light duties in an alternate position on Monday September 14, 2009 and was aware of the duties he would have been given.
  • the worker attended his physician on Tuesday September 15, 2009 and was referred to the local hospital for further assessment and treatment. This physician was not likely aware of the hospital's diagnosis when he completed "paperwork" for the employer.
  • the worker was assessed at the local hospital on September 15, 2009 and was found to have suffered a soft tissue injury due to trauma. An x-ray is reported to have found no fracture or dislocation.
  • the employer's nurse contacted the physician who treated the worker at the hospital. This physician advised that the worker could perform one-handed light duty employment.
  • the file information at the time of the refusal to work, does not support the assertion that the worker refused light duty employment due to the effects of the prescribed medications. This was raised at a much later date.

In conclusion, the panel finds that the worker's failure to accept the employer's offer of a light duty position was not reasonable given he had already performed the duties and the medical information establishes that he was fit to work alternate light one-handed duties. Had the worker accepted the offer of a light duty position, he would not have suffered a loss of earnings and would have received his pre-accident wages from his employer to September 21, 2009. The employer's appeal is allowed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 22nd day of November, 2010

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