Decision #24/13 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by Review Office of the Workers Compensation Board ("WCB") which determined that he was capable of performing the modified duties provided to him by his employer and that he was not entitled to wage loss benefits. A hearing was held on January 10, 2013 to consider the matter.

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 September 7, 2011, the worker filed a claim with the WCB for a right hand, shoulder and forehead injury when he tripped and fell at work on August 28, 2011. The worker advised the WCB that he attended a hospital facility for treatment on August 28, 2011 and was told that nothing was broken and was given a prescription. The worker was told to stay off work for 5 days and then to see his family physician.

On August 29, 2011, the worker went to work and said that he was given a stamp to stamp parts. On August 30, 2011 he did nothing but just sat there for the day. His last day worked was August 30, 2011.

On September 9, 2011, the employer's accident report confirmed that the worker injured his right hand, shoulder and forehead on August 28, 2011. The employer stated:

…The employee reported that his arms and head struck the floor, and that his right arm was sore and hard to move, and that his head was sore. NEW Update - employee returned to work the following day with a medical OHSA form outlining restrictions of not using right arm or, in the absence of available duties, being off work for 1 week when a reassessment is scheduled. Employee interpreted this to mean they would be off work. Management informed them of the ability to accommodate and that they were able to work immediately, not using their arm. Employee opted for not coming to work that day and returned the next day. The next employee did not notify management they were in, and when manager located the employee, they were found to be performing regular duties. Manager questioned this. Employee said that he didn't want to be doing any boring work. Manager took the employee off that work and gave him one-handed work. Employee was further instructed not to use their right arm. If anything came up that could not be done one armed, or needed their dominant arm, they were to get assistance…The following day, injured worker presented to the manager that they were going to need to go see a doctor again for increased pain in their right arm. When asked if it was because they had chosen to work outside of the restrictions outlined by the doctor, he said yes. Employee was given another WCB package to take to the doctor, reminded about our ability to accommodate him within his restrictions.

Initial medical information showed that the worker attended a hospital facility for treatment on the day of accident and was diagnosed with a right acromioclavicular strain. The treating physician reported on September 10, 2011 that the worker was capable of alternate or modified duties with the use of his left arm and light movement with the right arm. The treatment plan included analgesics, mobilization as tolerated and to follow up with his own physician.

On August 31, 2011, a different physician completed a sickness certificate status that the worker's dates of illness were August 28, 2011, August 31, 2011 and including September 5, 2011.

A third physician (reported to be the family physician) stated in a medical certificate dated September 2, 2011, that the worker suffered pain in his forehead, right shoulder and right wrist and the worker was advised not to work from September 5 to September 9, 2011.

A WCB adjudicator spoke with the worker on September 13, 2011 to gather additional information. With respect to whether he refused to perform light duties, the worker stated that his employer asked him to stamp but this activity was infrequent in nature. He said he was stamping an order using his left hand and found this difficult to do because he was right handed. When asked to clarify stamping duties, the worker said it was something he could not do with only his left hand and his boss gave him troubles about using his right hand to complete the task. The adjudicator asked the worker if there were any one handed duties aside from stamping offered by the employer. The worker replied that there was nothing he could do with only one hand and he refused to elaborate further.

In a letter to the employer dated September 21, 2011, the adjudicator stated that a relationship between the development of the worker's difficulties and an accident arising out of and in the course of their employment had been established and that the worker's claim for compensation had been approved on a limited basis.

In a letter to the worker dated September 21, 2011, the adjudicator confirmed that the WCB accepted his claim for a right shoulder strain; however, the WCB would not accept responsibility for wage loss beyond August 28, 2011. Based on a review of the information on file, the adjudicator determined: "Your ability to perform the light duties after the injury, your choice to work outside the established restrictions when you performed your regular work and the absence of objective findings beyond the initial hospital examination do not support a loss of earning capacity."

The WCB received a report from the family physician dated September 23, 2011. He stated the worker "fell at work on Aug. 28, 2011. He suffered headache and painful right neck and shoulder. I attended him in my office again on Sept. 2, 2011. He still had headache, and pain in his right shoulder and neck. I advised him not to work for one week. I attended him on Sept. 9, 2011 and today, he still suffers headache and painful shoulder and neck. I advised him to work on light duties, physio and meds and I will check him on Sept. 30, 2011."

On October 25, 2011, a union representative acting on behalf of the worker, requested Review Office to reconsider the adjudicator's decision of September 21, 2011. The union representative said it seemed reasonable for the emergency room doctor to advise the worker to take five days off work and then to see his family physician on September 9, 2011. When the worker saw his doctor on September 9, 2011, he complained of neck, right shoulder/arm pain, weakness and immobility. Any issue with him hitting his head had not been recognized. The worker complained of headaches. The whiplash effect from falling and hitting his head continued to cause discomfort. It was felt that the worker's time loss should still be considered due to his injuries sustained arising out of his work.

On November 28, 2011, the employer's representative submitted to Review Office that the worker had no loss of earning capacity as a result of the incident on August 28, 2011 as suitable modified duties with no wage loss were immediately offered and refused. It was therefore the employer's position that the adjudicative decision of September 21, 2011 should be upheld.

On December 12, 2011, Review Office determined that the worker was not entitled to wage loss benefits. Review Office noted that it was clear that the worker was instructed by the emergency room physician that he was capable of performing modified duties. The worker disputed this statement even though he did attend the workplace to perform modified duty work on August 28 and August 29, 2011. On his application for benefits, the worker informed the WCB that he was seen by his physician on September 6, 2011 and was advised to stay off work for the rest of the week. In fact, the worker was first seen by the family physician on September 2, 2011 at which time he was instructed to continue to work light duties. Review Office said there was no indication that the family physician felt the worker was totally disabled when he saw the worker on September 2, 2011, only two days after the worker had ceased performing the modified duties provided by the employer. Review Office therefore concluded that it could not accept the worker's position that he was incapable of performing the modified duties provided by his employer. On September 24, 2012, the worker's union representative 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.

Under subsection 4(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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.

Worker's Position

The worker was assisted by a union representative at the hearing. It was submitted that the worker hurt himself on August 28, 2011 when he fell at work. He went to the hospital that day with a hematoma on his head, a right shoulder strain and he was noted to have limited range of motion. An occupational health assessment form ("OHAF") was filled out at the hospital which indicated "unable to return to work." The worker was given medication and advised to stay off work. Contrary to the information on the OHAF form, the worker went back to work and was accommodated for a few days until he was unable to work. On August 31, 2011, there was a sickness certificate as well as an OHAF form stating the worker was still unable to return for work. On September 2, 2011, there was a doctor's note which advised that the worker not work from September 5 to 9, 2011.

It was submitted that the WCB made a mistake in finding that the worker was capable of performing one-arm duties. There was objective medical evidence of his disability with the findings of hematoma, limited range of motion and acromioclavicular strain. Further, the employer had limited resources available to accommodate workers so the modified duties offered to the worker were not appropriate. Overall, however, the worker's position was that he should not have been accommodated in the first place and that he was not capable of performing one-arm duties. He was on medication and should have had the time to rest and see his doctor a week later as he was advised when he was at the hospital.

Employer’s Position

An advocate and a disability management specialist appeared on behalf of the employer at the hearing. It was submitted that the worker was not entitled to wage loss benefits. The employer's return to work program was well established and well known. The expectations of both workers and management were clear. There were many opportunities for individuals to return to work with limitations proposed by their attending physicians and which could be confirmed by the medical information provided by the physician to the WCB. The WCB form Doctor First Report dated August 28, 2011 identified a diagnosis of right acromioclavicular strain and indicated the worker was capable of alternate and modified work. Restrictions were use of left arm and light use of right arm. Another Doctor First Report form was filed by another physician dated August 31, 2011. This form was prepared after the worker had attempted a return to work for a shift and a half and was found working outside of the restrictions that were recommended for him. At this time, the worker was still indicated as capable of performing modified work and was advised not to lift more than 10 pounds, for a period of four weeks. It was unusual that the recommendation regarding ability to work in the second Doctor First Report differed from the OHAF and sickness certificate completed by the same physician. It was also noted as unusual that the worker's family physician provided a handwritten report indicating he advised light duties on September 2, 2011, then contradicted himself and provided a second handwritten report indicating that on September 2, 2011 he advised the worker not to work for one week.

It was submitted that there is an obligation on workers to inform their attending physicians that modified or alternate duties are available in the workplace. There is also an obligation that workers must mitigate and perform work within any return to work plans that are appropriate and reasonable in the eyes of the WCB. It would be exceptional that someone with a single limb injury would become totally disabled from any and all activities in the workplace. The use of medication should not have been a factor because if it was, the worker's physician would have been required to put restrictions on the worker's drivers license. This was not done so the cognitive impairment from medication should not have impeded the worker's ability to perform modified duties during this time.

The employer submitted that modified duties were made available to the worker and it was clearly identified in the medical reports that the worker was not totally disabled. It was requested that the current adjudication be upheld.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits. In order to determine the appeal, the panel must consider whether or not the worker suffered a loss of earning capacity at the relevant time. On a balance of probabilities, the panel finds that the worker did have a loss of earning capacity and is therefore entitled to wage loss benefits.

Entitlement to wage loss benefits is based on evidence of disability or loss of earning capacity. This is usually supported by medical information from the worker's treating healthcare professional. In the present case, the worker was seen by multiple physicians and the reports from the physicians are not entirely clear.

Chronologically, the medical reports can be summarized as follows:

  • August 28, 2011 - Dr. W at hospital completed OHAF form and checked both "unable to work" and "capable of returning to work with restrictions." Handwritten notes read: "off 1 week - to be reviewed then can use left arm - cannot use right arm." The form also indicates that patient is capable of: "squatting, climbing stairs, fine motor tasks, left arm."
  • September 10, 2011 - Dr. W completed WCB Doctor First Report form for the August 28, 2011 attendance. Report indicates worker is capable of alternate or modified work: "use of left arm and light movement right arm."
  • August 31, 2011 - Dr. A at medical clinic completed OHAF form indicating unable to return to work with no return date.
  • August 31, 2011 - Dr. A also completed a sickness certificate indicating worker should be off work for illness from August 28, 2011, and August 31, 2011 to and including September 5, 2011.
  • September 26, 2011 - Dr. A completed WCB Doctor First Report form for the August 31, 2011 attendance. Report indicates worker is capable of alternate or modified work: "no lifting >10 pounds."
  • September 2, 2011 - Dr. L (family physician) wrote medical note indicating: "advised not to work from September 05 - 09, 2011."
  • September 8, 2011 - Dr. L completed WCB Doctor First Report form for unspecified attendance date indicating not capable of alternate or modified work.
  • September 23, 2011 - Dr. L completed a handwritten report indicating that on September 2, 2011 he advised working light duties.
  • September 30, 2011 - Dr. L completed a "corrected copy" of the September 23, 2011 report which indicates that on September 2, 2011, he advised the worker not to work for one week.

With respect to the availability of modified duties, the employer's position was that it had modified one-handed duties available for the worker. At the hearing, however, the evidence was that the one-handed duties actually offered to the worker consisted of stamping work, which required manual co-ordination that the worker said he did not have in his non-dominant left hand, and some photography work, which would take approximately one hour. The employer acknowledged that it did not have a standard list of available modified duties, but stated that it was confident that temporary one-handed accommodation could be provided to the worker.

After reviewing the evidence as a whole, the panel accepts that other modified duties could have been made available to the worker, but on a balance of probabilities, we find that the worker was disabled from all forms of employment from the time of the workplace accident until his return to work on September 9, 2011. Although the medical reports are at times contradictory, the worker's clear evidence was that when he attended at the hospital on the day of the accident, he was told to stay off work for one week and to follow up with his family doctor at that time. The OHAF form completed at the hospital can be interpreted to be consistent with this version of events. The panel finds that it was reasonable for the worker to rely on the advice of the emergency room physician that he should stay off work. As of August 31, 2011, the OHAF form and sickness note completed by Dr. A supported total disability. Finally, the worker's family physician provided a medical note, a WCB Doctor First Report and a revised "corrected report" which supported total disability from September 2 to September 9, 2011. Given that the worker's injuries included not only the right shoulder strain but also a significant blow to the head which resulted in headaches and neck pain, we accept that his injuries were totally disabling from the time of the accident until September 9, 2011 when he returned to the workplace. The worker did manage to work for one and a half shifts on August 29 and 30, 2011, but the evidence is that he was not able to perform his regular duties, had difficulty performing the modified duties which were offered to him, and he spent a significant portion of his time in the workplace "just sitting there." While he did manage to be physically present in the workplace, we find that his functional ability to perform his duties was limited.

For the foregoing reasons, we find that the worker is entitled to wage loss benefits as he did have a loss of earning capacity. The worker's appeal is allowed.

Panel Members

L. Choy, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Choy - Presiding Officer

Signed at Winnipeg this 15th day of February, 2013

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