WCAT. Decision Number: WCAT WCAT Decision Date: January 13, 2012 Shelley Ion, Vice Chair. Introduction

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1 Decision Number: Decision Number: Decision Date: January 13, 2012 Panel: Shelley Ion, Vice Chair Introduction [1] The worker appeals a May 17, 2011 decision of the Review Division of the Workers Compensation Board, operating as WorkSafeBC (Board), which had reviewed a November 23, 2010 Board decision. The Review Division decision is #R , which may be found on the Board website [2] The worker is a primary school teacher and was injured on October 18, 2010 when she pulled down an overhead screen that detached from the wall and fell. It struck her across her left shoulder blade and close to the back of her neck. In a November 3, 2010 decision letter, the Board accepted the worker s claim for a left shoulder and back contusion injury, and wage loss benefits began, effective October 19, [3] The Board s November 23, 2010 decision had terminated the worker s wage loss benefits as of November 17, 2010 because the Board officer found that the worker had no medical restrictions preventing her from returning to her pre-injury job. [4] In the May 17, 2011 Review Division decision, the review officer framed the issue as whether the worker is entitled to temporary wage loss benefits beyond November 17, As a preliminary matter, the review officer found that she had no jurisdiction over either the worker s claim for continued health care benefits or the worker s right arm complaints, as the Board had not yet adjudicated those matters. The review officer concluded that the light duties offered by the employer were suitable and within the worker s medical restrictions. The review officer denied the worker s request and confirmed the Board s November 23, 2010 decision. [5] In the appeal to the (), the worker s representative submitted on October 4, 2011 that the issue is whether the worker is entitled to temporary wage loss benefits beyond November 17, However, she also stated that the remedy sought is wage loss benefits since January 17, 2011 and healthcare benefit costs. The worker s representative abandoned the claim for wage loss benefits between November 18, 2010 and January 16, [6] The employer is self-represented and the worker is represented by her union. 1

2 Decision Number: Issue(s) [7] Did the Board properly terminate the worker s entitlement to temporary disability (wage loss) benefits as of November 17, 2010? In particular: Was the worker s compensable left shoulder and neck contusion injury preventing her from performing her regular duties as a teacher? Was the worker s compensable left shoulder and neck contusion injury preventing her from performing the modified duties offered by the employer, and Was the worker reasonable in refusing the employer s offered selective/light duties. Jurisdiction [8] This appeal is brought under subsection 239(1) of the Workers Compensation Act (Act), which permits appeals of Review Division findings to. [9] Section 254 of the Act gives exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law, and discretion arising or required to be determined in an appeal before it. has jurisdiction to consider new evidence, and to substitute its own decision for the decision under appeal. Under section 250(1) of the Act, may consider all questions of fact and law arising in an appeal. is not bound by legal precedent. [10] As a vice chair, I must make my decision on the merits and justice of the case, but in so doing I must apply an applicable policy of the Board s board of directors. The Rehabilitation Services and Claims Manual, Volume II (RSCM II) contains the published policy applicable to this appeal. [11] I must weigh the evidence on the balance of probabilities. In the event that the evidence on an issue is evenly weighted, subsection 250(4) of the Act directs me to resolve that issue in favour of the worker. [12] In the notice of appeal, the appellant worker indicated she wished the appeal to proceed by way of written submissions. I have considered the Manual of Rules of Practice and Procedure, including item #7.5 Appeal Method, and I have reviewed the issue, evidence and submissions in this appeal. The appeal primarily involves the application of law and policy to evidence on file, particularly medical evidence. I find that an oral hearing is not necessary for the fair adjudication of this appeal. Background and Evidence [13] The worker is a 57-year-old teacher and she injured herself on October 18, She is right hand dominant, and had been pulling an overhead screen down with her right 2

3 Decision Number: hand when it fell on left shoulder blade and close to the back of her neck. Her left arm was bruised on the shoulder, middle forearm, and elbow, which injuries were described on the October 21, 2010 physician s first report. [14] On October 25, 2010, the employer offered light duties to the worker in a supernumerary capacity. [15] On October 27, 2010, according to a Board memo, the worker did not return to work full hours as expected. The worker had called the Board and reported a need for two additional weeks off, and the Board nurse advisor recorded in the memo that there was no additional medical on file to support this time off. [16] On October 27, 2010, the worker saw her physician who noted in an October 29, 2010 physician s progress report that the worker was still having pain and bruising and appeared unhappy about work situation. The physician reported pain, bruising along the upper left deltoid, and reduced range of motion in the left shoulder and C-spine. The physician found a trigger point at the left levator scapulae insertion. The physician stated the worker was not capable of working full duties full time, and recommended physiotherapy and a follow up with the worker s regular physician. [17] On October 29, 2010, the worker s physician noted that he had discussed the need for physiotherapy with the worker. Objectively, the physician found the worker s abduction was 90 degrees and had reduced internal rotation. [18] On November 3, 2010, the Board accepted the worker s claim for a left shoulder and back contusion injury, and wage loss benefits began, effective October 19, [19] Also on November 3, 2010, according to a November 10, 2010 Board telephone memo, the employer offered light duties to the worker as an extra person working with a small group of children, taking micro breaks as needed. [20] On November 5, 2010, the worker s physician sent a progress report to the Board for a November 3, 2010 visit with the worker, and reported the worker was not capable of working full duties, full time. The physician estimated it would be 7 to 13 days before the worker could return to work in any capacity. [21] On November 9, 2010, the worker attended her general physician and he sent a progress report to the Board on November 12, The physician noted he had completed the functional assessment form and further reported: The worker currently was restricted by pain. The worker gave a full history of the incident, and the screen landed on her left shoulder with no other injuries sustained. 3

4 Decision Number: She had started physiotherapy a week ago, and was apparently told by the physiotherapist that the physician needed to provide specific exercises (which the physician noted was inappropriate as the physiotherapist should be able to assess the worker). The worker actively has marked decreased range of motion; however, passively the physician was able to achieve full range of motion. The worker was tender over the upper trapezius and clavicle, with full range of motion of her head and neck. She was not capable of returning to work full duties full time, and she needed about seven to thirteen days before she could return to work in any capacity. [22] Also on November 9, 2010, the worker s general physician sent a signed functional abilities assessment form to the Board and in it reported: No restrictions: walking, standing, stair climbing, kneeling, bending or twisting As tolerated: running, sitting, and physical exertion Lifting floor to waist: less than five pounds Lifting waist to shoulder: unable to do with left arm Ladder climbing: cannot do safely Pushing and pulling: produces left arm pain / shoulder / neck Limitations/Restrictions: repetitive movements and above and below shoulder activity of left neck/shoulder/arm [23] In the functional abilities assessment form, the physician stated the duration of the worker s restrictions above was undetermined, as they awaited the physiotherapist s recommendations. [24] On November 10, 2010, according to a Board telephone memo, the employer explained the light duties to the Board, and stated that the worker would be in a space all by herself, and would not be in a classroom setting. The employer said the worker was given appropriate light duties as of November 4, 2010 and the employer did not understand why the worker would not accept them. [25] On November 15, 2010, further to the case manager s request for an opinion, a Board medical advisor stated: I have reviewed this worker s claim file as requested. The diagnosis appears to be left shoulder contusion and associated myofascial pain. Typical temporary limitations for this type of condition includes: 1. Inability to use injured arm at or above shoulder level. 2. Inability to lift/push/pull with injured arm at more than the Light Demands level. 4

5 Decision Number: As I understand it, the attending physician has completed the functional abilities form by now. If the worker is unable to do a graduated return to work, referral to an OR1 program is recommended. [all quotes reproduced as written, except as noted] [26] On November 15, 2010, the Board case manager wrote the worker an introduction letter, and explained that an early and safe graduated return to work is considered an appropriate form of therapy. The case manager asked the worker to call the Board s nurse advisor after each doctor s visit to provide an update on her medical condition and progress. [27] On November 17, 2010, the employer s health and safety manager ed the Board and advised that in terms of the worker s restrictions (noted above in the functional abilities assessment form), I think this is all doable within her current position, given the worker is right hand dominant. [28] Also on November 17, 2010, according to a Board telephone memo, the Board case manager then called the worker to inquire why she had not contacted her employer regarding the offer of light duties. The memo states that the worker advised that no one has explained the light duty program to her. The case manager explained the program and the role of the nurse advisor, and advised that refusing suitable light duties could affect her entitlement to wage loss benefits. The memo then notes that the worker advised that she had called the employer on November 11, 12 and 15, 2010, but was not able to make contact, but would get in touch with the employer that day (November 17, 2010). [29] Later on November 17, 2010, the employer sent an to the Board summarizing a conversation the employer had just had that morning with the worker, which followed the case manager s ing the employer his Board telephone memo that recorded the worker s advice that she did not understand the offered light duties. In the to the Board, the employer said she had explained to the worker that because she is right hand dominant her minimal limitations were easily accommodated within her regular teaching assignment. The employer s states that the worker is not happy with me and had advised that her right arm gets sore (which the employer notes in the is not relevant to the worker s accepted claim for a left shoulder and neck injury). [30] Later in the morning of November 17, 2010, according to a Board telephone memo, the worker called the Board and advised she was anxious to speak with the case manager about the employer s return to work plans. 5

6 Decision Number: [31] According to a November 18, 2010 Board memo, a return to work meeting had been scheduled by the employer at the worker s place of employment for 8 a.m. that morning, but had been cancelled by the worker and her union. An exchange between the worker s representative and the employer indicates the representative cancelled the meeting at 5 p.m. on November 17, but does not say why and there is some ambiguity as to whether the reason may have been that the union representative was not available for November 18, [32] The above-referenced November 18, 2010 Board memo noted the November 17, 2010 conversation with the worker in which she had been advised that failure to accept suitable offered work could compromise her entitlement to further wage loss benefits, and further stated: There is a functional abilities form that was completed by the client s General Practitioner with temporary minimal limitations and the limitations did not exceed the client s current job demands of a school teacher. The employer was prepared to provide a reaching stick to minimize any reaching requirements of the non dominant injured arm. The employer was prepared to provide full hours and full pay effective today. The Case Manager had suggested that the employer was offering alternative duties but this had been incorrect [as] the functional abilities form submitted by her family doctor did not exceed the job demands of a school teacher. It is my understanding, after speaking [with the employer] that the client is insisting on a supernumerary return to work. After reviewing the medical evidence on file, including the temporary limitations in place, it is my position that this is not appropriate. I have requested the proposed schedule hours of work and rate of pay from the employer effective today and intend to deem the client able to return to work, effectively entitling her to Section 30 wage loss benefits less the proposed earnings offered by the accident employer effective today. [emphasis added] [33] A November 18, 2010 internal memo within the employer, which was sent to the Board on November 22, 2010, states: I arranged a return to work meeting for [the worker] for November 18, 8:00 am to assist in her return to work effective this date. This meeting 6

7 Decision Number: was really only a formality to support this employee, since she had already been approved to return to work with very minor limitations. The goal of the meeting was to bring this employee back to her regular full time assignment with full pay effective immediately, giving consideration to her minor limitations. Since this employee had been cleared to return to work effective Monday, November 15, and since the employer and WorkSafeBC in an attempt to support this employee to return to work effective immediately all agreed to attend a meeting the morning of November 18, and since the worker refused to attend, WorkSafeBC in consultation with their specialists is suspending benefits effective this date. [emphasis added] [34] Also on November 18, 2010, the Board case manager requested a second clinical opinion from a Board medical advisor about the worker s ability to perform light duty work and whether there was any medical reason why she was not able to return to her job as a teacher. [35] On November 19, 2010, according to the next chronological Board telephone memo, the worker called to arrange a graduated return to work meeting for Monday, November 22, 2010 and the memo indicates the worker was referred to her case manager and the call was transferred. However, there is no indication in the claim file of a subsequent communication between the worker and the case manager. [36] On November 22, 2010, another Board medical advisor provided a second clinical opinion as follows: I have reviewed the available medical and ergonomic information provided on file. All of the medical information indicates that the worker sustained a contusion when struck by the projector screen in the incident accepted under this claim. The accident employer has provided duties that do not involve the use of the worker s shoulder or arm, as well as offering opportunities for breaks when needed. The client is an extra support staff member. In response to the Case Manager s questions: 1) Is there any other medically plausible diagnosis that I should consider? No other diagnosis is noted or apparent from the available information. 7

8 Decision Number: ) Are there any medical restrictions and/or medically plausible limitations that would prevent the client from performing the light duty work that the employer has offered? None. 3) Would there be any medical reason why the client is not able to return to her job as a school teacher? None identified from the available medical information. [emphasis added] [37] On November 23, 2010, the Board issued its decision terminating the worker s wage loss benefits, effective November 17, The reason given was that there were no medical restrictions preventing the worker from doing her regular job as a teacher. [38] On December 29, 2010, the worker s physiotherapist sent the Board a report, which noted some ongoing range of motion limitations for both the left and right shoulders. The physiotherapist noted the worker s job duties that appear to reflect what she did in her regular classroom setting, and the physiotherapist noted her limited abilities in that context. In particular, the physiotherapist indicated that for the last visit of December 21, 2010, the worker was capable of lifting floor to waist high, lifting waist height to above her head with two hands but only a three pound weight rather than a five pound weight. Further, she could write on a wall for three minutes with ten second breaks every four to five seconds, and the goal was to write on the wall for five minutes. The physiotherapist set out that the expected improvements were restoration of full active range of motion in the worker s cervical spine and left shoulder. The physiotherapist noted that she expected two to four more weeks of treatment at which point she expected the worker to be able to return to her pre-injury work. [39] On January 28, 2011, according to a Board telephone memo, the worker s physiotherapist left a voice mail message with the Board stating that the worker s left shoulder is doing fine but that the worker is now having trouble with her right shoulder", due to the worker using her right arm to do so many things. Review Division [40] On February 3, 2011, the worker s representative sent its submissions to the Review Division. She submitted that section 5(1) of the Act and RSCM II policy items #35.11, 35.30, and were not followed. The representative noted the worker s physicians had set out her limitations and that around the time wage loss ended referred her for physiotherapy. The representative further stated: 8

9 Decision Number: The worker s position is simply that the [case manager s] return to work schedule for her was too aggressive.... The worker [asks] that both [wage loss and health care benefits] might be restored to the point at which she was fit to return to work. [41] On March 9, 2011, the employer submitted to the Review Division that the Board s decision to conclude this claim effective November 17, 2010 was correct. In support of their argument, the employer noted: The worker refused to attend or communicate with the employer about a return to work meeting. The worker s limitations were easily accommodated within her teaching assignment; however, the employer was not able to discuss this with the worker due to her failure to communicate or attend a return to work meeting. [42] On March 17, 2011, the worker s representative advised the Review Division that it had no specific submission in response to the employer s submission, other than the worker maintains the position previously set out. [43] In her May 17, 2011 decision, the review officer confirmed the Board s November 23, 2011 decision. The review officer stated she left it to the worker to seek a decision from the Board regarding her right arm symptoms (claimed as being due to overuse), and similarly referred the worker to the Board to make a claim for health care benefits as the review officer s jurisdiction was limited to wage loss benefit entitlement. [44] After considering the worker s physician s November 9, 2010 functional abilities form and the Board medical advisor s opinion of November 22, 2010, the review officer found that the light duties offered by the employer were appropriate and within the worker s medical restrictions, noting that the medical advisor had found that the worker was capable of returning to her regular job duties. The review officer noted there was no contrary medical evidence on file. As both of the medical advisor s opinions support the conclusion that the offered light duties were medically reasonable, the review officer stated she agreed with the Board s decision because of the availability of safe, productive and full-time employment and the lack of any reasons provided by the worker for not attending work. Submissions to [45] In her notice of appeal, the worker s representative stated that the Review Division decision was wrong because the worker remained disabled after her benefits were cut off on December 12, The remedy sought before was that the worker s claim be continued for wage loss and health care benefits beyond December 12, I assume this December 12 date is a typographical error, perhaps repeated from the 9

10 Decision Number: review officer s cover letter that enclosed her decision, as the worker s benefits were terminated as of November 17, [46] In an October 4, 2011 letter, the worker s representative submitted the following: The issue is whether the worker is entitled to temporary wage loss benefits beyond November 17, In terms of benefits, the worker is seeking wage loss since January 17, 2011 and healthcare benefit costs. The return to work proposed by the worker s physician before the Christmas break in 2010 constituted no more than job-shadowing. The graduated return-to-work plan attempted on January 17, 2011 was unsuccessful, as the worker could not physically complete the work. From January 2011 until May, the worker was seen by her physician and her physiotherapist who feared she may be developing capsulitis. The worker saw an orthopaedic surgeon Dr. Markland on June 1, 2011, who diagnosed her with symptoms compatible with left levator scapulae tendinitis and a possible early right shoulder capsulitis. In the September 2, 2011 letter addressed to the worker s representative, the surgeon referenced a variety of medical records and information that is not in the claim file (apart from a December 29, 2010 physiotherapy report, the November 9, 2010 physician s report was the last record sent to the Board directly). Dr. Markland stated: o The worker saw the walk-in clinic physician on November 18, 2010 at which visit there was some confusion over the type of work the worker was authorized to perform. On this November 18, 2010 visit, the physician suggested light duties and maintained his diagnosis of musculoskeletal injury. o Together with a rehabilitation consultant, the worker saw the walk-in clinic physician again on November 30, 2010 for return to work planning, and he again maintained his authorization for light duties, noting the worker s ongoing discomfort in her shoulder, clavicle, and neck and that she still had compromised range of motion. Ongoing symptoms of headaches, reduced range of motion of the left shoulder and neck, chronic ache, disturbed sleep, reduced energy and stamina and limited activities of daily living and anxiety regarding a return to work were all noted. The physiotherapist at this time noted the diagnosis was undetermined and that the worker s recovery was slow. o The worker was starting a gradual return to work on January 17, 2011, but was seen by her physician on January 18 and given a note for work. 10

11 Decision Number: o In February 2011, the worker saw a physiotherapist who believed she was at risk of developing capsulitis of the right shoulder, and did not believe the worker was currently in a condition appropriate for a gradual return to work. On the advice of her physician, the worker remained off work through to at least June o The worker advised the surgeon that three days after her return to work in January 2011, she developed pain in her right shoulder and was unable to move her right arm away from her body. The worker also complained of pain on her left side that was exacerbated in the last degrees of flexion and abduction. She was awakened at night with right shoulder pain, and intermittent numbness on the right arm but not on the left. o The surgeon s final diagnosis of the worker s condition was, on the left shoulder, levator scapulae tendinitis. On the right side, calcifying tendinitis of the rotator cuff. o As of early November 2010, the worker was still symptomatic from her left shoulder injury, as witnessed by her physiotherapist report, dated 9 November, 2010 and her physician s opinion that she was fit for light duties but not a return to her normal work. o The medical evidence would thus support the worker being unable to return to her usual work beyond November 17, The worker later became symptomatic from a calcifying tendinitis in her right shoulder. This complicated her evolution and made it difficult for the [worker] to return to work as she had difficulty lifting with either upper limb or using her arms in a sustained elevation or abduction. Her calcifying tendinitis was not caused by the accident but may have become symptomatic due to overuse of her right arm while the left was incapacitated from the work accident. [emphasis added] The worker continues to rely on the submissions to the Review Division. [47] On November 17, 2011, the employer submitted that the worker s claim was accepted for a left shoulder and back contusion resulting from the October 18, 2010 workplace incident, and the right shoulder condition has not been accepted to date. The employer reiterated that the worker was offered suitable accommodation and the worker unreasonably refused to attend the November 18, 2010 return to work meeting despite being advised by the Board that a refusal could impact her wage loss benefits. [48] The employer noted that Dr. Markland acknowledged that the evidence showed the worker was fit for light duties as of November 17, 2010, and, that the worker s right shoulder problem was not caused by the workplace accident but may have become symptomatic due to overuse of her right arm while the left was injured. The employer submitted that overuse of the right arm, if it did occur, was not work-related because the worker was not participating in the proposed light/modified duty return to work program. 11

12 Decision Number: [49] The employer further submitted that it supported the worker s abandonment of wage loss benefits between November 18, 2010 and January 16, However, the employer submitted that the principal reason for the worker s failure to work past January 17, 2011 was right shoulder pain, which is a condition not yet accepted on this claim. [50] On December 1, 2011, after receiving the employer s submission, the worker s representative advised that it had no further submissions in reply. Reasons and Findings [51] The only accepted condition under the claim is a left shoulder and neck contusion injury following an October 18, 2010 workplace accident. [52] At the outset, I find that I have no jurisdiction over the worker s right shoulder problem that arose in and around January 2011, as the Board has not adjudicated that condition. Similarly, I have no jurisdiction over the worker s entitlement to healthcare benefits, as the decisions before me relate to the worker s wage loss benefits. I leave it to the worker to make the appropriate application to the Board for decisions on her right shoulder symptoms and healthcare benefits. [53] Sections 29, 30, and 31.1 of the Act are applicable to the issue under appeal and provide that temporary disability benefits are paid only so long as the worker has a temporary total or temporary partial disability. [54] Policy item #35.00 Temporary Partial Disability Payments, provides that if a temporary partial disability results from a worker s injury, the Board must pay the worker compensation according to a particular formula. [55] Policy item #35.30 Duration of Temporary Disability Benefits, provides that if the worker ceases to have the disability for which the wage loss benefit is to be made, the Board may not make the payment. This policy further states: A temporary disability ceases when it either resolves entirely or stabilizes as a permanent impairment [56] Policy item #34.11, Selective/Light Employment, provides that selective/light employment duties are temporary alternative work offered by an employer. Such modified duties are intended to promote a worker s gradual restoration to the pre-injury level of employment. [57] The effect of the relevant law and policy is that the worker s entitlement to temporary disability benefits will cease as soon as the worker s compensable injuries no longer disable the worker from returning to pre-injury employment. In addition, a worker s entitlement to temporary disability benefits may also cease if the worker is capable of 12

13 Decision Number: performing light or modified duties and those duties restore the worker s pre-injury income. [58] Policy item #34.11 sets out four criteria that must be satisfied before a worker s temporary disability benefits may be terminated on the basis of appropriate light duties: While the compensable injury may temporarily disable the worker from performing her normal work, the worker must be capable of undertaking some form of suitable employment. The work must be safe for the worker to perform, that is, it will neither harm the worker nor slow recovery. The work must be within the worker s medical restrictions, physical limitation, and abilities. The work must be productive (rather than token or demeaning tasks, which are detrimental to the worker s rehabilitation). Within reasonable limits, the worker must agree to the arrangement. [59] The employer s evidence was that as of November 18, 2010 they intended to have the worker back in her regular classroom, with accommodations for her limited restrictions, such as giving her a reaching stick. There is no dispute in this appeal that the light duties offered were productive. [60] Policy item #34.11 goes on to state that if the worker refuses to accept light duties that fulfill the four criteria above, the Board will consider the reasons for the worker s refusal. If the worker s explanation is unreasonable, the Board may terminate the worker s temporary disability benefits. [61] In my view, the Board must carefully follow the requirements of a policy authorizing the termination of benefits to which the worker would otherwise be entitled. That is particularly so given that the benefit in question in this case was a replacement for the worker s lost wages and consequently of significant importance to the worker. [62] The November 23, 2010 Board decision terminated temporary total disability wage loss benefits effective November 17, 2010 because the medical evidence led to the conclusion that there was no continuing objective medical evidence of temporary total or temporary partial disability that would prevent the worker from returning to her pre-injury job as a teacher. It is clear that the case manager had concluded that the worker s restrictions did not prevent her from performing her regular duties as a teacher and that the employer s offer of light duties was effectively irrelevant. I therefore find that this November 23, 2010 decision terminated the worker s benefits under policy item #35.30 (Duration of Temporary Disability Benefits), and not under policy item #34.11 (Selective/Light Employment). In addition, I find that this decision implicitly found that the worker s compensable injury had resolved entirely and it thus concluded the worker s claim, subject to review by the Review Division and appeal to. 13

14 Decision Number: [63] Based on the medical evidence, I disagree with the Board case manager in that I conclude that the worker s left shoulder and neck injury had not resolved entirely as of November 17, 2010 such that she was capable of performing all of her regular teaching duties. In coming to this conclusion I prefer the worker s treating physicians and physiotherapist s reports to the Board over the Board medical advisor s opinion of November 22, I have placed little weight on Dr. Markland s opinion because for the November 2010 timeframe it relies largely on hearsay medical evidence, and, because the opinion relates primarily to the worker s condition from January 2011 forward rather than as it was in November Nonetheless, apart from the medical advisor s November 22, 2010 opinion, all of the evidence (and particularly the November 9, 2010 functional abilities assessment form) indicates that as of November 17, 2010 the worker still had some limitations and restrictions related to her compensable injury, albeit perhaps minor and easily accommodated by the employer. I therefore find that the worker s entitlement to temporary wage loss benefits should not have been terminated under policy item # [64] Whether and when the worker s compensable injury did subsequently resolve entirely or stabilize as a permanent impairment is a matter for the Board to adjudicate. Further, whether in late December or January 2011 the worker subsequently suffered an aggravation to her left shoulder or neck, or whether she suffered a new injury to her right shoulder, those are not matters before me in this appeal and are for the Board to adjudicate. [65] The May 17, 2010 Review Division decision confirmed the Board s decision to terminate wage loss benefits effective November 17, However, the reasons given by the review officer differed. While noting in passing the November 22, 2010 Board medical advisor s opinion that the worker was capable of returning to her pre-injury job without restrictions, the reason given for upholding the Board s decision was because the worker was found to have unreasonably refused the employer s offer of light duties that the review officer concluded were suitable. I find that the Review Division confirmed the termination of wage loss benefits, but under policy item #34.11 and not under policy item # The review officer made no conclusion as to whether the worker was no longer disabled or whether her compensable injury had resolved entirely. [66] In my view, it is significant in this appeal that the worker has abandoned her claim for wage loss benefits between November 18, 2010 and January 16, Rather, she only seeks wage loss benefits after she unsuccessfully attempted a return to work on January 17, 2011, with evidence in Dr. Markland s report of her difficulties in performing non-occupational activities of daily living, such as weeding her garden. I find that Dr. Markland s September 2, 2011 opinion, provided in support of this appeal, in large part relates to the worker s right shoulder problem which is a condition not yet adjudicated by the Board. In any event, I find that all of the evidence, including that of Dr. Markland, supports a conclusion that the worker was reasonably capable of safely returning to light duties as of November 18, 2010, which is the conclusion reached by the review officer. The worker s own treating physician felt that at the time that she was 14

15 Decision Number: capable of light duties. Having considered all of the evidence, including the medical evidence and the worker s restrictions, I find that the worker was capable of performing the light duties offered by the employer on November 18, [67] I have thus found that the first three criteria of policy item #34.11 have been met. At this point, as to the fourth criteria in that policy, I note that the conclusion that the worker refused the light duties was stated by the review officer to be the lack of any reasons provided by the worker for not attending work. This conclusion was apparently based on her representative s cancellation of the return to work meeting arranged by the employer on November 17 for November 18, 2010, although based on the claim file documentation I find there is some ambiguity as to whether this might have been because the representative was simply not available that date. Further, on November 17, 2010 after the worker said that no one had explained the light duty program to her, the Board case manager told the worker that failure to accept reasonable light duties could impact her entitlement to wage loss. The memo for that conversation indicates the worker then said she had tried unsuccessfully to reach the employer but would try again that day. The worker called the Board later in the morning of November 17, 2010 and asked to speak to a Board case manager about the employer s return to work plans, but no conversation took place. The worker then spoke to a nurse advisor on November 19, 2010 to arrange a graduated return to work meeting for November 22, 2010 and the Board nurse advisor referred the worker to the case manager and transferred the call. While the Board received an from the employer advising it had explained the light duties to the worker, there is no evidence in the claim file that anyone from the Board called the worker back or that as of the November 23, 2010 termination of benefits letter any explanation was sought from or given by the worker as to whether she in fact was refusing light duties, and if so, why. [68] If the Board had terminated the worker s benefits under policy item #34.11 (Selective/Light Employment), based on the above claim file documentation alone I would have found that the Board had failed to follow the policy s requirements in that the Board failed to reasonably seek the worker s explanation for her apparent refusal to perform light duties. However, that is not what happened, as it was only the review officer who terminated the benefits under policy item # [69] After carefully considering the matter, I am satisfied that the worker s explanation of why she refused light duties was adequately provided by the time the review officer issued her decision, namely through the worker s representative s submission that the case manager s return to work plan for the worker was simply too aggressive. Further, I note that in a July 6, 2011 letter to Dr. Markland requesting the opinion, the worker s representative stated that the worker was offered light duties on November 3, 2010, which she declined. In coming to my conclusion, I also take into account the worker s abandonment of wage loss benefits between November 18, 2010 and January 16,

16 Decision Number: [70] For all of the above reasons, I deny the worker s appeal. I vary the Review Division decision to find that the Board case manager erred in concluding that the worker s compensable left shoulder and neck injury had resolved entirely as of November 17, 2010; otherwise, I confirm the balance of the review officer s decision. Conclusion [71] I deny the worker s appeal. I vary the Review Division decision #R to find that the Board case manager erred in concluding that the worker s compensable left shoulder and neck injury had resolved entirely as of November 17, 2010 and in terminating the worker s benefits under policy item # However, I otherwise confirm the review officer s decision that the worker s entitlement to wage loss benefits were properly terminated as of November 17, 2010, based on the worker s failure to accept reasonably suitable light duties as required in policy item # [72] After November 18, 2010, the issue of whether and when the worker s compensable left shoulder and neck injury subsequently resolved entirely or stabilized is a matter for the Board to adjudicate. Similarly, whether in late December 2010 or January 2011 the worker subsequently suffered an aggravation to her left shoulder or neck, or whether she suffered a new injury to her right shoulder, those are not matters before me in this appeal and are for the Board to adjudicate, as is the worker s claim for ongoing healthcare benefits. [73] There was initially no request for reimbursement of appeal expenses. However, upon inquiry by the registry at my request, the worker s representative submitted an invoice from Dr. Markland for $1,563 that the representative had paid for Dr. Markland s September 2, 2011 opinion. However, the worker s representative did not provide submissions on the amount of reimbursement, although the registry advised the representative to do so if she sought full reimbursement beyond the tariff amount. Having considered the August 8, 2011 letter from the worker s representative requesting Dr. Markland s report, I find it was reasonable for the worker to have obtained this evidence for the appeal. Therefore, under section 7 of the Workers Compensation Act Appeal Regulation, I direct the Board to reimburse the worker for Dr. Markland s September 2, 2011 opinion letter, according to the Board s schedule of fees (the tariff). However, I am not satisfied that reimbursement in excess of the tariff is appropriate, given the limited usefulness of Dr. Markland s report. Shelley Ion Vice Chair SI/tv 16