Decision #59/11 - Type: Workers Compensation
Preamble
On February 25, 2010, it was determined by Review Office of the Workers Compensation Board ("WCB") that the worker was capable of performing modified duties that were provided to him by his employer and that he was not entitled to wage loss benefits beyond December 21, 2009. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held on March 23, 2011 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits beyond December 21, 2009.Decision
That the worker is entitled to wage loss benefits from December 22, 2009 to January 8, 2010 inclusive.Decision: Unanimous
Background
The worker injured his right wrist/hand in a work related accident on November 4, 2009. When seen for treatment at a hospital emergency facility on November 5, 2009, the diagnosis rendered was a strain to the right hand and wrist. The claim for compensation was accepted and wage loss benefits were paid to the worker.
On November 6, 2009, the worker was seen by his family physician who reported tenderness at the fifth metacarpal (MCP) and dorsal wrist. The diagnosis was a wrist/hand injury. The worker was prescribed medication and to stay off work for one week.
On November 13, 2009, the family physician reported soft tissue tenderness in the ulnar aspect of the wrist, the MCP was non tender and the worker was unable to make a complete fist. It was reported that the worker was able to perform light duties and to minimize the use of his right hand and arm for two weeks.
The worker was seen by a physiotherapist on November 16, 2009. The diagnosis outlined was an acute right wrist sprain second degree. It was indicated that the worker was capable of left handed duties only.
On November 18, 2009, the family physician reported "light duties not working out well - work not accommodating the light duties making him do basically the same duties as normal - did try duties left hand only, but this is not comfortable for him. Objective findings were 'persistent tenderness soft tissue ulnar aspect of the wrist'."
On November 27, 2009, the family physician reported that the worker still had tenderness in the ulnar aspect of the wrist and should be off work until December 4, 2009.
A physiotherapy discharge report dated December 2, 2009 indicated that the worker's recovery was satisfactory and he was capable of left handed duties.
On December 4, 2009, the family physician reported objective findings of tenderness as per previous exams in the right ulnar aspect of the wrist. It was indicated that the worker should be off for another 2 weeks.
In a report from a second physician dated December 17, 2009, it was indicated that the worker's range of motion in his right hand/wrist was full, grip strength was better but the worker had slight weakness of his right hand. It was indicated that the worker could return to work on December 21, 2009 at light duties, four hours per day.
In a report from the family physician dated December 18, 2009, it was indicated that the worker was feeling better and had mild tenderness in the right ulnar aspect of the wrist. The worker's wrist pain/injury was improving and that he could resume part time work with modified duties at four hours per day.
In a memorandum dated December 21, 2009, a WCB case manager documented that she met with the worker and a health and safety representative at the worksite. The case manager referred to the medical report dated December 17 and outlined the view that there was no medical evidence to support why the worker could only work four hours per day and therefore she was unable to pay him partial wage loss benefits.
On December 22, 2009, the worker called his case manager to advise that he was unable to continue with office duties as he was required to do stapling, printing and sorting. He felt these activities were outside of his restrictions. The case manager asked the worker to meet with her at the WCB on December 23 to discuss the return to work.
In an e-mail dated December 22, 2009, the employer's health and safety representative advised the WCB that the worker was asked to do some paper work. The task entailed updating program binders which involved printing, sorting and putting paper work into binders. The worker refused as he would need both hands to insert the papers into the binders.
At a meeting held on December 23, 2009, the worker advised the case manager that he returned to work on December 22 to light office work using his left hand only. He was given one handed tasks to do but felt they were placing too much strain on his left arm/hand. The worker confirmed that he was printing information off from the computer and stapling the sheets together, using his left hand which felt awkward. The case manager advised the worker that the duties described appeared to be within his current capabilities and she would not extend wage loss benefits for December 22 or December 23, 2009. The case manager asked the employer if there were other one handed duties that the worker could perform. The employer indicated there was an inspection job that did not require use of both hands and he was going to see whether the position was available. It was decided that a return to work meeting would be held on December 29 and the worker agreed to meet at the worksite.
A WCB medical advisor reviewed and discussed the worker's file with the case manager on December 23, 2009. After considering the mechanism of injury, the diagnosis of strain/sprain and the recent medical reports and the time already passed for recovery, he said it seemed likely that the worker was capable of at least modified duties using both hands. Restricted work hours were not indicated. The medical advisor suggested restrictions to include the avoidance of heavy lifting and push/pull, and forceful gripping/grasping with the right hand. Otherwise increasing use of the hand would generally be encouraged.
On December 29, 2009, the worker advised the case manager that he went to see his doctor on December 28, 2009 and was advised that he could not return to work. The worker said he was very active prior to his injury and now he was unable to do anything. The worker indicated that he would not return to any type of work unless his doctor said he could.
On January 4, 2010, the worker advised the case manager that he was in pain and felt as though his bones were crunching in his wrist. The worker advised that he was not willing to attempt a return to work as he was not physically able to.
On December 28, 2009, the attending physician stated: "modified duties not working out at his workplace - work cannot provide proper modified duties for him - all duties provided to patient requires use of both hands and is exacerbating his wrist pains…advised him to stay of (sic) work for now until I r/a him as previously planned."
On January 7, 2010, the case manager spoke with the treating physician. The physician indicated that the worker was capable of performing modified duties but the worker informed him that there were no modified duties available. When seen on December 28, 2009, the worker told him that he tried to work one handed duties however he could not do them because they were awkward. The physician indicated that he would support a return to work at modified duties.
In a decision dated January 8, 2010, the case manager indicated that she was unable to accept responsibility for wage loss benefits beyond December 21, 2009 as the medical information did not support total disability. It was the case manager's opinion that the worker was capable of modified duty work and that his loss of earning capacity December 22, 2009 onwards was the result of his failure to participate in a return to work. On January 19, 2010, the worker appealed the decision to Review Office.
On February 25, 2010, Review Office determined that the worker was not entitled to wage loss benefits beyond December 21, 2009. Based on the diagnosis of a strain injury, Review Office concluded that it was unlikely that the worker was incapable of performing the light duties provided by the employer by December 21, 2009, seven weeks after the date of the accident. When the worker was discharged from physiotherapy on December 2, 2009, his range of motion was improved and he was encouraged to continue with stretches and gentle grip strengthening, rather than avoiding all use of his wrist and hand. Review Office determined that the worker was capable of performing the modified duties provided by the employer. On August 6, 2010, 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.
This case deals with a request by the worker for ongoing wage loss benefits. 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.
Worker's Position
The worker attended the hearing and explained his reasons for appealing. He described his job duties on his return to work on December 22, 2009. He was told to work in the office, updating binders that are used as reference material. The worker and the Human Resources Director provided details about the job including: the binders contained up to 150 pages, the worker had to print and staple materials and insert into a binder; opening the binders required the use of two hands. The worker also indicated that he carried the binder with 2 hands and that the job also involved the use of a computer mouse. The worker denied that a co-worker had assisted him with carrying the binders.
The worker explained that he used both his left and right hands/arms to perform the duties. The worker advised that his right wrist was uncomfortable while he was performing the duties and that his right wrist became sore. He indicated that on a scale of one to ten, his wrist was at an eight when he went home.
The worker was asked about the information on file which indicates that he expressed concern about overuse of his left hand arising from the duties on December 22, 2009. The worker replied that his left arm was sore from performing the duties on December 22.
In answer to a question about his level of physical activity in December, the worker advised that he did not perform any physical activity at this time.
In answer to questions regarding the December 23, 2009 meeting with his WCB claim manager the worker stated:
A "Well, we had a discussion. It was she told me that because, like I said, with the duty that I was doing on the 22nd I had a problem with, you know, and that was the reason why I actually went to meet her in the first place.
Q Yes.
A So in that meeting that we had, she told me, well, I believe you capable of doing this. Like she already mentioned earlier that you're not capable of doing this, then you got to see a doctor.
Q Right.
A And whatever decision that he's going to make, I will respect. You can let me know. And that was what I was -- that was what I felt, you know, that was what I was under the impression of and that's what I did."
The worker advised that after the December 23, 2009 meeting with the case manager, he attended his physician who advised him to stay off work.
Employer's Position
The employer was represented by an employer advocate and its Human Resources Director. The employer advocate submitted that the worker is not entitled to wage loss benefits.
She reviewed the medical information and noted that a physician provided a December 17, 2009 report indicating that the worker's condition had improved, grip strength was better and range of motion was full. The physician recommended a return to light duties. She stated that the attending physician had noted the same findings. She also noted a physiotherapist, on December 2, 2009, found good range of motion and encouraged the use of the right hand.
The advocate noted that after the attempted return to work on December 22, a WCB medical advisor reviewed the file and found that the worker was capable of at least modified duties using both hands.
With respect to the light duties that the worker performed on December 22, the employer representative commented that the problems noted with the light duties at the hearing differ from the problems noted in 2009. The concerns noted in 2009 were in relation to the left arm and hand, and possible overuse of his left arm and hand. While at the hearing, the worker identified concerns relating to the use of his right arm and hand.
The representative indicated that the employer was able to offer appropriate duties and was doing "whatever they can to accommodate the restrictions, which…were to avoid forceful gripping and grasping and heavy lifting, none of which were involved in the binder duties…."
The representative submitted that the worker failed to mitigate the effects of the injury by not accepting suitable employment. She also submitted that there is a credibility issue since the worker has advanced differing accounts of the problems with the modified duties.
She concluded that there was no reason why seven weeks after a strain injury, which was resolving, with some restrictions, the worker could not return to work. She also stated there is no loss of earning capacity.
Analysis
For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after December 21, 2009 as a result of the workplace injury. This case turns on whether it was reasonable for the worker to refuse modified duties offered by the employer. The panel found that it was reasonable for the worker to refuse the modified duties and that he is entitled to wage loss benefits up to and including January 8, 2010, for the reasons that follow.
The panel finds that when the worker returned to modified duties on December 22, 2009, he was provided with duties which were outside his restrictions. Specifically, he was provided with duties that required the use of both hands although he was restricted to one-handed duties. In a discussion with the case manager on December 23, 2009, the worker maintained his belief that he could not perform two-handed duties. The worker attended his physician on December 28, 2009 and was advised to remain off work. The physician provided a Certificate of Illness dated December 28, 2009 indicating that the worker was not fit to return to work.
On December 23, 2009, the Case Manager undertook to obtain an updated medical report from the worker's physician but was not able to speak with the physician until January 7, 2010. On this date the physician advised the case manager that the worker could return to work to modified duties.
The panel ultimately finds that the worker is entitled to wage loss benefits up to January 8, 2010. In our view, the worker had a reasonable belief or apprehension that he could not perform two-handed duties given the difficulties he had performing the duties, and that in communicating this apprehension to his attending physician, the advice to stay off work at that point in time was reasonable, given the circumstances. The panel also finds that that the worker had a reasonable belief, based on his experience with the December 22, 2009 return to work, that the employer could not offer one-handed duties. However on January 7, 2010 the case manager had a telephone conversation with the worker's physician who agreed the worker could participate in modified duties. The worker was advised of this in a letter dated January 8, 2010 and in a telephone conversation with the Case Manager on January 8, 2010. The worker then agreed to attend a meeting on January 12, 2010 to discuss a return to work.
The panel finds, however, that the refusal to participate in the return to work on modified duties was not justified beyond January 8, 2010 and accordingly the worker is not entitled to wage loss benefits beyond this date.
The panel notes that difficulties in communicating amongst various parties and the availabilities of key individuals resulted in delays over the holiday season that interfered with resolving the issues around a return to work.
The worker's appeal is allowed in part.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 18th day of May, 2011