The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 22, 2000, at the request of the claimant. The Panel discussed this appeal on June 23, 2000.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits for the period January 8, 1998 to June 30, 1998; and

Whether or not the claimant is entitled to payment of wage loss benefits after October 16, 1998 to November 24, 1998 inclusive.

Decision

That the claimant is entitled to payment of wage loss benefits for the period January 8, 1998 to January 19, 1998; and

That the claimant is entitled to payment of wage loss benefits after October 16, 1998 to November 24, 1998 inclusive.

Background

During the course of his occupation as a deboner on August 25, 1997, the claimant injured his left thumb while working on a turkey thigh. The diagnosis rendered by the attending chiropractor was a sprain/strain of the left thumb. On August 28, 1997, the attending physician's diagnosis was a hyperextension injury of the left thenar muscle. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced effective August 27, 1997.

On October 8, 1997, a plastic surgeon indicated that the claimant seemed to have damaged the radial collateral ligament of his left thumb. The surgeon placed the claimant's left thumb in a spica cast for six weeks. On October 24, 1997, a WCB medical advisor indicated that the claimant could perform light duties using the right hand. The claimant commenced light duties with the accident employer and benefits were paid to November 5, 1997 inclusive. On November 20, 1997, the plastic surgeon indicated that the claimant's left thumb was stable but stiff and that physiotherapy was warranted.

In a physiotherapy report dated December 16, 1997, the therapist noted that the claimant's thumb pain was increasing since doing heavier duties. She recommended that the claimant perform lighter duties which involved restrictions of no lifting greater than 5 to 10 kgs. of maximal lifting to minimize his thumb pain and therefore optimize his therapy and recovery.

On October 10, 1998, the physiotherapist reported that the current physiotherapy treatment was not effective in decreasing the claimant's symptoms and that he was unable to perform his work duties which consisted of assembly line duties, "a variety of turkey/chicken prep duties including stuffing necks, packing parts into boxes and carrying/twisting necks in a cold environment." The physiotherapist indicated that the claimant was capable of performing light duties only with the right hand as tolerated. It was indicated that the claimant should avoid activities that involve repeated pinching, gripping and twisting involving the left thumb and no heavy carrying or lifting.

On February 11, 1998, the claimant advised the WCB that he was dismissed for missing too many days from work.

In a progress report dated April 15, 1998, the attending physician indicated that the claimant had been scheduled to undergo an arthroscopy on April 24, 1998.

On April 24, 1998, a plastic surgeon specializing in cosmetic surgery reported that the claimant likely had some degree of ongoing laxity or a partial tear of his ulnar collateral ligament and volar plate to the thumb. As the injury had not resolved after nine months, the surgeon indicated that the claimant may benefit from direct repair of the ligament or possibly even ligament reconstruction with a tendon graft. On May 4, 1998, the plastic surgeon was advised that the WCB accepted financial costs associated with the procedure.

On May 5, 1998, the claimant spoke with a WCB adjudicator indicating that he had been off work since January 8, 1998. His employer dismissed him for being absent for too many days. The employer had no work available that did not require the use of the left hand. Information obtained from the employer on May 7, 1998, indicated that the claimant had been dismissed from its employ effective February 5, 1998 and that his last date of pay was January 8, 1998. The employer indicated that the claimant was dismissed for missing too many work days (3.5 weeks of absenteeism).

On June 3, 1998, the claimant provided a sworn statement to a WCB field representative with respect to his injury, medical treatment and his employment activities since the compensable injury of August 25, 1997. On the same day, the employer provided a sworn statement to the WCB outlining the claimant's employment activities together with the dates that he missed from work since the August 1997 accident.

The claimant underwent surgery on June 30, 1998. The post-operative diagnosis was left game keepers thumb.

In a decision dated July 6, 1998, Claims Services notified the claimant that in its opinion, the evidence supported the claimant remained capable of light duties since his return to work in November 1997. Further time loss from work was not a result of the work injury but rather a result of his dismissal. As Claims Services was of the opinion that the claimant had not continued to suffer a loss of earning capacity as a direct result of the work injury, further wage loss benefits were not payable beyond November 5, 1997. The claimant was also advised that the WCB would cover wage loss benefits effective on the date of surgery and during his recovery period.

In the plastic surgeon's report dated July 8, 1998, it was noted that the claimant had done well since his undergoing reconstruction of the ulnar collateral ligament of the left thumb. The claimant's thumb was placed into a fibreglass spica cast for approximately six weeks. After that the internal pin would be removed and the claimant would begin on a course of physiotherapy.

On October 9, 1998, Claims Services informed the claimant that he was considered to have recovered from the June 30, 1998, surgery and that he was capable of performing some form of work. As a result, further wage loss benefits were not payable beyond October 16, 1998.

In a follow up report dated November 24, 1998, the plastic surgeon advised that the claimant had been discharged from physiotherapy and that his range of motion has plateaued. The grip strength was recorded at 42 kilograms in the left hand with the lateral pinch at 8.2 kilograms and the tripod pinch at 5 kilograms. The claimant advised the physician that his pain and function of the thumb were significantly better than the pre-operative state. The claimant was considered able to return back to a work environment of repetitive heavy lifting and gripping activities.

On December 4, 1998, a worker advisor presented argument that the claimant's alternate work duties were not within his capabilities and therefore he was entitled to additional wage loss benefits. It was also the worker advisor's position that the claimant was put into an injurious work situation which exacerbated his compensable condition. On March 16, 1999, Claims Services confirmed that no change would be made to its earlier decision and the case was referred to Review Office.

On September 17, 1999, Review Office considered the case along with a further submission received from the worker advisor dated March 24, 1999 and as well from the employer's advocate dated April 26, 1999. Review Office also considered a memorandum dated June 28, 1999, prepared by a WCB rehabilitation specialist who had performed a job site analysis on June 25, 1999. The purpose of the analysis was to review the light duty positions that the claimant had been offered.

The Review Office determined that there was no entitlement to payment of wage loss benefits for the period January 8, 1998 to June 30, 1998 and that there was no entitlement to payment of wage loss benefits after October 16, 1998.

Review Office noted that the claimant injured his left thumb on August 1997 and that he was right hand dominant. Review Office was of the opinion that the claimant was capable of performing the duties which had been offered by the employer after January 8, 1998. The surgeon and physiotherapist who saw the claimant on December 16, 1997, supported the opinion that the claimant could work, even though he was unable to use his left hand fully. The claimant's absence from the work beginning January 8, 1998, was not supported by any medical evidence. Review Office indicated that the claimant's inability to work in the light duties after February 8, 1998, was due to reasons unrelated to his workplace injury. The claimant was therefore not entitled to wage loss benefits from January 8, 1998 to June 29, 1998, inclusive.

Review Office further noted that the claimant was paid wage loss benefits from the date of surgery up to October 16, 1998, when he was considered fit for light duties. Review Office was of the position that if the claimant remained an employee with the company, he would likely have been accommodated into the employer's light duty program as previously afforded. The reason suitable duties were unavailable was the result of the claimant's dismissal for reasons unrelated to the compensable injury. The claimant's loss of earning capacity after October 16, 1998, was not considered related to the workplace injury.

On April 6, 2000, the worker advisor appealed the Review Office's decision and an oral hearing was arranged.

Reasons

Chairperson MacNeil and Commissioner Finkel:

As the background notes indicate, the claimant injured his left thumb on August 25th, 1997 just three months after his having commenced work with the employer. Prior to his injury, the claimant missed a considerable number of working days. According to the employer's records, the claimant did not report for work on the following dates: July 2nd, 14th, 15th, 16th, 28th, 29th, 30th, 31st and August 1st through the 18th. The claimant testified that he was off for ten working days during this period because of a viral infection. He had been advised by his treating physician not to go to work because of the possibility of transmitting this infection as well as the fact that his job duties involved the processing of meat. The claimant denied taking off more than the two weeks or ten working days.

The claimant was entitled to and did receive wage loss benefits for the period of time during which he experienced a loss of earning capacity until his return to light duty work on November 6th, 1997. He continued to perform a variety of light duties until he stopped work on January 8th, 1998. In his June 3rd, 1998 statement, the claimant declared, "I worked from January 6th to 8th 1998 inclusive on the Johnson tank and for some reason my hand swelled up so badly when I got home after work on January 8th, 1998 that I had to cut the prosthetic cast off when I got home. I phoned in on January 9th, 1998 to the front desk and left a message I would not be in until I saw a MD."

On two occasions the employer had formally cautioned the claimant that "failure to make immediate improvement in your attendance record may result in disciplinary action." Because of the continued absences from work for personal reasons, the employer insisted that a medical certificate would be required for any future absences. We note, however, that the claimant did not provide any medical documentation excusing his absence from work on January 9th, 1998. A supervisor attempted to contact the claimant and was advised by a relative living next door to the claimant that a personal matter had arisen and that the claimant would be away from January 19th to February 1st, 1998. Again there was no formal notification provided to the employer with respect to this leave of absence. The employer eventually terminated the claimant's employment due to chronic absenteeism effective February 5th, 1998.

We find that the employer dismissed the claimant with cause. Accordingly, the claimant is only entitled to payment of wage loss benefits for the period of January 8th, 1998 to January 19th, 1998 being the date of his unauthorized personal leave.

As to the second issue, we note that the WCB reinstated the claimant's benefits following his surgery on June 30th, 1998. Wage loss benefits continued to be paid to the claimant until October 16th, 1998 when the WCB's adjudication considered that he was fit for light duties. The treating surgeon's chart notes of August 25th, 1998 recorded the following comments:

"Mr. [the claimant] was seen today for management of reconstruction of the left thumb MCP joint. Since his procedure, he has done well. Today the cast was removed and all incisions are healing well. The internal pin was removed today. [The claimant] was referred to a physiotherapist for range of motion exercises. He is to return to Clinic in three months' time for reassessment."

The claimant returned to his surgeon's clinic on November 24th, 1998 for reassessment. The surgeon found the claimant to be doing well and concluded that he was capable of returning back to a work environment of repetitive heavy lifting and gripping activities. We find based on the weight of evidence that the claimant had not, on a balance of probabilities, fully recovered from the effects of his compensable injury until November 24th, 1998. Therefore, we are of the view that the claimant is entitled to payment of wage loss benefits after October 16th, 1998 up to and including November 24th, 1998.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of August, 2000

Commissioner's Dissent

Commissioner Frisken dissents.