The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 4, 2002, at the request of legal counsel, acting on behalf of the claimant. The Panel discussed this appeal on April 5, 2002.

Issue

Whether or not the worker is entitled to wage loss benefits for the periods August 31, 1999 to April 26, 2000 and June 23, 2000 to August 1, 2000.

Decision

That the worker is entitled to partial wage loss benefits for the periods August 31, 1999 to April 26, 2000 and June 23, 2000 to August 1, 2000.

Decision: Unanimous

Background

In May 1999, the claimant submitted an application for compensation benefits in which he claimed his left wrist difficulties were due to the repetitive nature of his employment activities as a sheet metal fabricator. Initial medical reports showed that the claimant was diagnosed with a wrist sprain. The Workers Compensation Board (WCB) accepted the claim and payment of wage loss benefits commenced. On May 31, 1999, the claimant returned to his regular duties but experienced further left wrist pain which necessitated him to cease work effective June 21, 1999.

The claimant was assessed by a chiropractor on June 17, 1999. The diagnosis rendered was left wrist tenosynovitis with ligamentous strain and carpal joint hypomobility. The claimant returned to modified duties on July 12, 1999, but again ceased work on August 30, 1999.

In a telephone conversation with a WCB adjudicator on September 8, 1999, the claimant indicated that when he returned to work on July 12, 1999, his wrist was fine for 2 days but each day the pain got worse. He wore a wrist brace at work. The claimant indicated his wrist was hurting so much that he refused to complete the extremely heavy aspects of his job. No specific incident occurred at work or while carrying on outside activities. On August 30, 1999, he had enough of the pain and knew his wrist needed time to heal. His doctor told him that his wrist was chronic.

On September 15, 1999, a WCB adjudicator documented a telephone conversation that she had had with the employer concerning the claimant's recurrence. The employer indicated that when the claimant returned to work in July he was offered modified duties but declined them. The claimant resumed regular duties as a sheet metal fabricator. When he returned to work, the claimant did not make complaints regarding any ongoing wrist pain. On August 30th, the claimant told his night supervisor that he did not want to work with certain employees. He also told a co-worker that he would not work and that he would go on WCB benefits.

Further file documents showed that sworn statements were obtained from the claimant and the employer in late September 1999. On October 1, 1999, the claimant's co-worker confirmed to a WCB adjudicator that the claimant continued to make complaints about his wrist. When the claimant returned to work in July he complained that his wrist was hurting especially when moving it back and forth and that he had been wearing a wrist brace. The claimant was having problems working with several co-workers because they were allegedly smoking drugs and he did not want to work with them. The day before the claimant was terminated from employment, he advised that he had seen his doctor and was going to go on WCB benefits. The claimant indicated that he could not work with his co-workers and could not perform heavy work because of his wrist.

In a letter dated October 20, 1999, primary adjudication advised the claimant that updated chiropractic reports had been obtained and that a WCB chiropractic advisor reviewed his case. It was the opinion of primary adjudication that there was no cause-effect relationship between his May 1999 injury diagnosed as a strain and his current problems. The WCB would therefore not accept responsibility for any medical treatment or time loss beyond August 30, 1999. On November 29, 1999, primary adjudication confirmed its decision of October 20, 1999, following review and receipt of updated chiropractic information and x-ray results.

On December 15, 1999 a report was received from an orthopaedic specialist who diagnosed the claimant with possible ligamentous injury left wrist. Arrangements were made for an MRI assessment.

An MRI exam dated January 28, 2000 noted the impression of ulnar minus variance, Kienbock's disease and tear of the TFCC complicated by peri-ligamentous ganglion.

In view of the MRI results, the treating specialist noted on February 21, 2000, that the next step would be to arthroscopically assess the wrist and potentially debride the TFCC tear, excise the ganglion and assess the lunate and carpal ligaments. On March 3, 2000, a WCB medical advisor authorized the surgery as being a WCB responsibility.

On February 28, 2000, the claimant informed a WCB adjudicator that he had not been working since August 1999 and was claiming time loss from August 1999 to date. The claimant indicated that he quit his job for medical reasons. When asked whether his employer had modified duties the claimant said no. When speaking with the employer on February 29, 2000, the WCB adjudicator noted that the employer would have been able to accommodate the claimant with modified duties.

On March 9, 2000, primary adjudication advised the claimant that it was the opinion of a WCB medical advisor that he was capable of performing modified duties of avoiding repetitive compression and stress through his affected wrist. It was the opinion of primary adjudication that the claimant's recurrent wrist problems were related to his May 1999 compensable injury and that costs associated with medical treatment would be covered by the WCB. Primary adjudication also considered the claimant to be capable of performing modified duties. "Sworn statements indicated that you quit your employment with your accident employer. The accident employer indicated that they would have been able to accommodate the modified duties. As you have taken yourself out of employment, we are unable to pay wage loss benefits."

In a letter dated June 16, 2000, primary adjudication noted that the claimant had undergone left wrist surgery on April 26, 2000 and that wage loss benefits had been reinstated on April 26, 2000. Up-dated medical information was obtained and reviewed by a WCB medical advisor. The medical advisor considered the claimant was capable of performing light duties. Suggested restrictions were no lifting greater than 10 pounds and no repetitive use of the wrist. Based on Section 39(2) of the Act, primary adjudication stated that wage loss benefits were payable up to June 22, 2000 inclusive and final.

On July 10, 2000, a worker advisor appealed the WCB's decisions of March 9 and June 16, 2000. The worker advisor submitted three letters from the treating chiropractor in support of his position that the claimant was entitled to benefits. In the first letter dated October 14, 1999, the chiropractor confirmed the claimant's disability from September 2 to November 15, 1999 due to a hair-line fracture in the left wrist. On January 10, 2000, the chiropractor stated that the claimant was completely unable to return to his occupation of sheet metal worker due to chronic sprain of the left lunate/scaphoid ligament in the left wrist. On May 3, 2000, the chiropractor confirmed that on August 4, 1999 the claimant was advised to stop working as a scrap metal cutter/welder due to instability of the left wrist. The worker advisor noted that this advice was repeated again by the chiropractor on August 20 and 25, 1999 and that the claimant finally decided to follow his advice on August 31, 1999. The worker advisor also presented argument that the employer did not have suitable modified duties available and therefore the claimant should receive wage loss benefits from September 1, 1999 until April 26, 2000 and again from June 22, 2000 until he was able to resume his pre-accident work.

In a decision dated December 8, 2000, Review Office determined that the claimant was not entitled to wage loss benefits between August 31, 1999 and April 26, 2000 and between June 23, 2000 and August 1, 2000. Review Office summarized that the claimant was offered and refused light duties, preferring instead to perform his regular work with only minor modifications. The dissolution of the claimant's relationship with the employer was either due to issues unrelated to the compensable injury or due to the claimant's resignation.

Review Office also found that suitable modified work duties had been made available and if it were not for the worker's reluctance to perform such duties, and the ultimate discontinuation of his employment, then these duties would have continued to be available, thus eliminating any loss of earning capacity during the periods in question. On November 7, 2001, legal counsel appealed Review Office's decision of December 8, 2000 on the claimant's behalf. On April 4, 2002, an oral hearing was held at the Appeal Commission.

Reasons

The claimant appeals Review Office's decision that there was suitable work available during the periods in question. We note that the claimant was assigned temporary restrictions of no lifting greater than ten pounds and no repetitive use of his left wrist. A thorough review of the evidence confirms that prior to August 31st, 1999 the claimant performed portions of his regular duties, but was not capable of returning to his full pre-accident job duties. The claimant was also provided with a number of smaller jobs on a machine known as the 'iron worker'. After a careful review of the evidence in respect of the modified duties, we have, on a balance of probabilities, concluded that a number of those duties did in fact exceed the claimant's medical restrictions and accordingly he should be entitled to wage loss benefits. However, we find based on the weight of evidence that the claimant was not totally disabled and did not experience a total loss of earning capacity at the relevant times.

Following termination of his employment, the claimant displayed little initiative in attempting to find alternate employment suitable to his physical condition and restrictions. We have, therefore, no hesitation in finding that the claimant was, on a balance of probabilities, capable of minimum wage employment within his restrictions, but he chose not to explore this option. Accordingly, the claimant is not entitled to full wage loss benefits as contended.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of May, 2002