Decision #92/17 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits after September 7, 2016 as suitable modified duties were available effective September 8, 2016. A hearing was held on April 10, 2017 to consider the worker's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after September 7, 2016.
Decision
That the worker is not entitled to wage loss benefits after September 7, 2016.
Background
The worker filed a claim with the WCB for injuries he sustained to his left elbow and shoulder on August 26, 2016 when he missed a step when getting out of his truck and fell 2 to 3 feet to the ground.
The Employer's Accident Report noted that the worker was at the gravel pit when he missed a step when coming out of the truck. The worker slipped and fell to the gravel bottom scraping his leg and shoulder. There were no visible breaks, just light shin gravel scrape. No blood was visible. The worker was taken to the hospital for a medical check-up.
Medical reports show that the worker attended a hospital facility on August 26, 2016 and was diagnosed with a pulled muscle in his left shoulder. On the same day, x-rays of the left shoulder identified no fracture or dislocation. On September 7, 2016, the treating physician diagnosed the worker with contusion to the left shoulder and elbow.
On September 8, 2016, a WCB adjudicator called the worker to advise that his employer was providing him with modified duties that did not involve use of his left arm. The worker was
advised that if he chose not to participate, he would not be paid wage loss benefits. The worker advised that he would return to work. By letter dated September 8, 2016, the WCB confirmed to the worker that arrangements were made for him to return to work with the accident employer on September 8, 2016 to work duties that involved helping with inventory, no truck driving and no heavy lifting.
Information submitted from the employer via e-mail correspondence indicated that the worker did not report for work on September 9, 10, or 12, 2016. The reasons given by the worker were as follows:
• He had to visit his doctor to see if he was able to work;
• He was unable to come to work due to lack of gas money and no ride to work; he also stated his displeasure in the modified duties that were being offered;
• His arm was aching and he was going to see his doctor.
On September 12, 2016, a WCB case manager spoke with the worker to discuss why he did not return to modified duty work. The worker denied having a conversation with the adjudicator on September 8, 2016. He also advised that he could not perform modified duties as he couldn't sleep.
By letter dated September 12, 2016, the worker was advised that he was not entitled to wage loss benefits beyond September 7, 2016 as suitable modified duties were available effective September 8, 2016. The decision was based on the findings that the current diagnosis was a bruise to the left shoulder and that he was capable of performing the following modified duties:
• Assisting driver of truck to pick up and deliver parts as required
• Counting parts
• General inventory (involves sitting at parts counter counting nuts/bolts and general small parts
• Review delivery slips and ensure PO# matches the order slip.
In e-mail correspondence dated September 13, 2016, the employer stated: "[Worker] would not be coming into work to do inventory, he will return to drive a truck if they need him for that. He said he is a truck driver not a counter and has no intention of returning to work unless he is driving."
On September 27, 2016, a physiotherapist reported that the worker sustained a left shoulder contusion and a left rotator cuff strain.
On October 5, 2016, the worker appealed the decision that he was not entitled to wage loss benefits. The worker indicated that he was unable to do light duties as the pain in his shoulder kept him up at night and it would be dangerous for him to drive.
In a decision dated November 22, 2016, Review Office determined that the worker was fit to perform the modified duties offered by the employer and he did not have a loss of earning capacity beyond September 7, 2016.
Review Office noted that the worker was right hand dominant and was diagnosed with a strain/contusion on August 26, 2016. When seen by a physician on September 7, 2016, the doctor stated the worker was not fit for work and the doctor did not record any comments about the injuries impacting the worker's sleep or an inability to drive. After considering the duration of time since the injury occurred along with the diagnosis/area of injury, Review Office was of the opinion that the worker was not totally disabled as a result of his compensable injuries.
Review Office found the duties offered by the employer were suitable given the worker's injuries. On further medical reports from September 2016, work restrictions were outlined by the physiotherapist and doctor, however the worker did not return to work.
In December 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
Following the hearing, the appeal panel requested additional information from the worker's treating physician which was later provided to the interested parties for comment. On May 24, 2017, the panel met further to discuss the case and to render a decision on the issue under appeal.
Reasons
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the WCB 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.
Section 22 of the Act provides that the worker must take reasonable steps to reduce or eliminate any impairment or loss of earnings. It provides that the WCB may reduce or suspend compensation payable to the worker.
WCB Board of Directors' Policy 43.20.25 Return to Work with the Accident Employer outlines the WCB's approach to the return to work of injured workers. It provides in part:
Suitable Modified or Alternate Work
Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.
The worker has an accepted claim for an injury arising from a 2016 workplace accident. He is appealing the WCB decision that he was fit to return to work to modified duties with the employer.
Worker's Position
The worker was self-represented.
The worker advised that he was working as a truck driver in a remote area. He picked up a load and was on a scale with his truck when he misplaced his footing and fell to the ground landing on his shoulder. He said that he heard a "ccrr" crunch and got up off the ground. He then finished at the scale and went to the site where he dumped his load. A co-worker took him to the local hospital. The worker said that he had three x-rays from different angles. He was told that it was a rotator cuff injury. He could hardly move. He was given a prescription for "painkiller, muscle relaxant stuff" and told to return in two weeks or see his physician.
The worker advised that he returned to Winnipeg and before he could see his physician, the employer and WCB wanted him to return to work. He then saw his physician who told him to take two weeks off. He got physiotherapy but was in pain. He said that he could not drive his car which has a standard transmission.
Regarding his current condition, the worker advised that he was better but that he can still feel the injury at times. He also advised that he took a couple loads into the bush this year on winter roads and "And it wasn't too bad. Like, it hurt all day, but at night it wasn't too bad, so thank god I'm getting back to work."
The worker said that he had about 10 physiotherapy treatments.
Regarding the employer's offer of modified duties, the worker said that couldn't lift his arm, or drive a vehicle, or lift parts. He confirmed that he saw his physician on September 29 but his arm was still hurting. He advised that he was given four injections in his arm.
The worker advised that he is only seeking payment for the eight week period that it took for him to recover.
Employer's Position
The employer was represented by its Project Safety Coordinator.
The employer representative advised that the employer offered the worker light duty assisting with the parts truck, working at the parts counter, inventory of the parts in the warehouse, and some cleaning up duties around the parts area. The employer representative confirmed that there is no bus service to this site.
Analysis
The worker is appealing the WCB decision that he was not entitled to wage loss benefits after September 7, 2016. For the worker's appeal to be approved, the panel must find, on a balance of probabilities, that the worker was not fit to return to work to perform the modified duties that were offered by the employer. The panel is not able to make this finding. The panel finds that the worker was fit to return to the modified duties offered by the employer.
Regarding the worker's physical condition and ability to work, the panel notes the September 27, 2016 note from the treating physiotherapist indicated that the worker was capable of modified duties employment with restrictions that he is unable to push, pull or lift over 15 pounds, unable to perform repetitive movement of the left arm or reaching > 90 degrees.
The panel accepts the employer representative's evidence that the light duties offered to the worker included assisting with the parts truck, working at the parts counter, inventory of the parts in the warehouse, and some cleaning up duties around the parts area. The panel considered these duties in light of the worker's restrictions and finds that the duties did not exceed the worker's restrictions.
As noted in the background, to assist with the adjudication of this appeal, the panel sought additional information from the worker's physician. The panel considered the additional information provided by the worker's physician, but finds that the physician's opinion was based upon inaccurate information. The panel notes that the worker's physician referred to lifting and carrying boxes. The panel finds these duties were not part of the modified duties offered to the
worker. Accordingly, the panel is not able to place weight upon the physician's evidence regarding the worker's ability to perform the modified duties.
The panel also notes that the worker did not attempt to perform the modified duties.
The worker's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
R. Campbell, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 23rd day of June, 2017