Decision #48/04 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on January 29, 2004, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on January 29, 2004 and again on March 2, 2004.Issue
Whether or not the claimant is entitled to wage loss benefits beyond January 7, 2002.Decision
That the claimant is not entitled to wage loss benefits beyond January 7, 2002.Decision: Unanimous
Background
On July 20, 1999 the claimant's glove became caught in a drill bit during the course of her employment as a production worker. As a result of the incident, the claimant sustained a partial amputation of the left thumb tip. The claim was accepted by the Workers Compensation Board (WCB) and benefits and services were paid accordingly.The claimant underwent further surgery to her left thumb on August 30, 2000. The post-operative diagnosis was "Revision amputation left thumb and excision of an inclusion cyst."
In a report from the pain clinic dated November 27, 2000, the treating anesthesiologist suggested that the claimant had phantom stump pain and a possible component of complex regional pain syndrome. Treatment consisted of injections to the thumb along with medication.
On July 16, 2001, a WCB medical advisor spoke with the treating physician who was of the opinion that the claimant had grown accustomed to time loss. The treating physician was in favor of encouraging the claimant to return to work even though she would always have some pain sensitivity issues.
The claimant underwent a functional capacity evaluation on August 24, 2001 and the results of this assessment are on file. It was noted that the claimant was unable to attempt and complete all the test activities requested, complaining that her symptoms were too great to continue.
On September 20, 2001, a WCB rehabilitation specialist attended the employer's worksite to assess alternate work placements for the claimant. The memo provided a detailed description of the job duties that were observed. It was noted that the claimant continued to experience phantom pains in her left hand and that her left hand felt colder than the right.
During a case conference held on November 5, 2001, it was agreed that the claimant would be in need of permanent restrictions given her reduced grip strength.
By December 3, 2001, arrangements were made for the claimant to return to work in an alternate duty position which entailed sorting handles. File information revealed that the claimant was 20 weeks pregnant and was expecting twins. It was anticipated that the claimant would only be able to work until approximately her 28th week at which time she would have to apply for EI maternity benefits. Subsequent file information revealed that the claimant returned to work on December 4, 2001 and only worked 45 minutes due to soreness in her hand.
On December 12, 2001 a plastic surgeon reported that the claimant experienced hypersensitivity of her thumb amputation stump. The surgeon concluded that it may be difficult for the claimant to do any type of occupation which involved repetitive lifting, gripping or pinching activities and that she should be relocated to a new job or retrained.
On December 17, 2001, the claimant's obstetrician advised a WCB adjudicator that she did not feel there would be any risk to the claimant's pregnancy by performing the alternate duties. She also commented that she did not see much merit in the claimant's returning to work given that the claimant would be off work between her 28th or 30th week of pregnancy as she was having multiple births.
In a letter dated December 17, 2001, a WCB case manager noted that the claimant's benefits were being suspended effective December 5, 2001 (later changed to January 7, 2002) as it was felt that the alternate duties of "sorting handles" fell within her restrictions. On April 18, 2002, a worker advisor appealed this decision to Review Office.
On June 17, 2002 Review Office confirmed that the claimant was not entitled to wage loss benefits after January 7, 2002. Review Office agreed that the claimant had some genuine pain hypersensitivity at the injury site but it was of the view that the claimant was not totally disabled and that she was capable of performing the job that was available to her effective December 3, 2001. Review Office agreed with the WCB's rehabilitation specialist's impression that the "sorting handles" job was within the claimant's restrictions.
The Review Office did not believe that the claimant made a reasonable attempt at performing the job duties prior to her leaving the workplace. Review Office pointed out that the claimant was able to perform the physical aspect of the job using her uninjured dominant hand and that the injured hand was used mainly as a support. On October 20, 2003, an advocate, acting on behalf of the claimant, appealed Review Office's decision and an oral hearing was held on January 29, 2004.
Following the hearing and discussion of the case, the Appeal Panel requested additional information from the claimant's obstetrician. A report was later received from the obstetrician dated February 9, 2004 and was forwarded to the interested parties for comment. On March 2, 2004 the Panel met to render its final decision on the issue under appeal.
Reasons
The Workers Compensation Act of Manitoba ( the Act) creates an obligation on the part of the WCB to pay benefits when an injured worker experiences a loss of earning capacity and/or requires medical treatment as a consequence of a compensable injury arising out of and in the course employment. However, there is no responsibility on the WCB to pay benefits in those instances where the worker voluntarily or intentionally removes his/herself from the employment environment because of personal circumstances, which in the particular case at hand happens to be a pregnancy.
As to the claimant’s advocate’s argument that benefits can be paid by the WCB on a discretionary basis, we note that section 39(2) of the Act only allows for the payment of wage loss benefits until such time as the loss of earning capacity ends. The Act does not provide for any discretionary payment beyond that date. There is no basis for granting payment as asserted by the claimant’s advocate.
As to the claimant’s possible entitlement to further wage loss benefits following the birth of her twins, we note that the claimant failed to contact the WCB as requested in its letter of January 11th, 2002, either in respect of a return to work or of an outstanding medical condition.
“As agreed, the board will be paying full wage loss benefits to you to January 7, 2002, inclusive and final. At the completion of your maternity leave, if you are still experiencing difficulties with your thumb, we would request that you seek medical attention promptly in order that we may obtain a medical report regarding your medical status. At that time, the board will make a determination as to whether or not there is any entitlement to any type of further wage loss benefits or a return to work program. Please be advised that although the WCB is only paying wage loss benefits to January 7, 2002, inclusive and final, the board still has an ongoing responsibility for medical treatment deemed relative to your workplace injury.” The evidence discloses, however, that the claimant had no further contact with her accident employer in respect of returning to work at modified and/or full time workplace duties.
As to whether the claimant could have returned to her pre-accident job, we find that the claimant would not have been precluded from returning to full time work with the accident employer or a similar employer. A review of the videotape evidence by the WCB’s Healthcare Management Services confirmed the following:
“…[T]his claimant appears to have good and normal function of the left hand, including the thumb, doing numerous activities such as opening and closing car doors, driving a car, lifting parcels and small children, pushing a stroller, etc., all of which were done in a fluid manner. At no time was there any evidence to suggest that such function was limited by subjective pain sensitivity.” We also note that the claimant did in fact return to full time work with a different employer at a later date as a production worker.
In addition to the foregoing, we also accept the treating obstetrician and gynecologist’s evidence contained in a letter dated February 9th, 2004 to the Appeal Commission’s recording secretary: “I did remember speaking to somebody from the Workman’s Compensation Board regarding when she should be off work. I told whoever I was speaking to that normally for multiple pregnancy we advise patients to stop work around 28 weeks. This would come up to the beginning of January 2002.”
We find that the claimant was unavailable for work of any sort beyond January 7th, 2002 for non compensable reasons i.e., her multiple pregnancy. We further find based on the weight of evidence that the claimant did not, on a balance of probabilities, suffer a loss of earning capacity beyond January 7th, 2002 as a consequence of her compensable injury. Therefore, the claimant is not entitled to wage loss benefits after this date and her appeal is hereby dismissed.
Panel Members
R. W. MacNeil, Presiding OfficerA. Finkel, Commissioner
M. Day, Commissioner
Recording Secretary, B. Miller
R.W. MacNeil - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 6th day of April, 2004