The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 1, 2004, at the request of an advocate, acting on behalf of the claimant. The Panel discussed this appeal on the same day.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond September 16, 1998.

Decision

That the claimant is not entitled to payment of wage loss benefits beyond September 16, 1998.

Decision: Unanimous

Background

On October 3, 1995, the claimant lacerated his left forearm on a piece of glass during the course of his employment as a glass edger. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid which included vocational rehabilitation benefits.

On December 8, 1997, the claimant commenced a graduated return to work program with the accident employer with the goal of working full time by January 19, 1998.

In January 1998, the WCB suspended the claimant's benefits for approximately 3 ½ months because of a January 13, 1998 incident that took place at the work site which was not related to the claimant's compensable condition. On May 4, 1998, the claimant returned to his modified duty position and in early July 1998, he stopped working due to pain and swelling in his left hand.

Medical reports on file confirmed that the claimant sought medical treatment on July 1, 1998 and was diagnosed with a left hand and forearm strain. Reports were also received from the claimant's plastic surgeon, a physiotherapist and by his treating physician.

On September 16, 1998, the claimant was arrested by the police after bringing a firearm to his workplace and threatening the plant manager. The claimant was later found guilty and was sentenced to prison for two years less a day.

In April 2001, a solicitor, acting on behalf of the claimant, asked the WCB to assess the claimant for a permanent partial disability award. He also asked that the WCB consider whether the claimant was entitled to wage loss benefits between July and September 1998.

On May 8, 2002, a WCB medical advisor rated the claimant's impairment at 23% (elbow, forearm, wrist and ulnar nerve) based on an April 17, 2002 report from an occupational health physician.

On January 30, 2002, a WCB case manager advised the solicitor that the claimant was not eligible to receive wage loss benefits between July 1, 1998 to September 15, 1998 inclusive. The WCB was of the view that the medical information did not support the claimant's contention that he was incapable of performing his modified duties. This decision was appealed by the solicitor and the case was forwarded to Review Office.

In a decision dated November 1, 2002, Review Office confirmed that the claimant was indeed experiencing difficulties with his left hand based on a review of the medical reports pre and post July 1, 1998. It was concluded that the claimant did have a loss of earning capacity due to his accident from July 1, 1998 until September 16, 1998 when he was arrested by police.

On October 25, 2002, the solicitor then contended that the medical evidence on file supported that the claimant was entitled to wage loss benefits since his release from prison on March 3, 2001. In a response dated November 27, 2002, the WCB outlined its position that the claimant's actions on September 16, 1998 were the cause of his loss of earning capacity and not his compensable injury. He was therefore not entitled to receive further benefits beyond March 3, 2001. On January 23, 2003, an advocate for the claimant appealed this decision to Review Office.

On May 16, 2003, Review Office determined that the claimant was not entitled to receive wage loss benefits beyond September 16, 1998. Review Office was of the opinion that the claimant's benefits during the period of his incarceration would not be payable, as his loss of earning capacity would not be considered the result of the accident but rather the result of the criminal act.

Review Office noted that the probation officer (advocate for the claimant) tried to make the point that the worker's mental health problems stemmed from the alleged mishandling of his original claim. "… Although these actions followed after the compensable injury, it does not necessarily follow that the mental health issues are a result of that injury. Specifically, Review Office believes that if an injured worker becomes depressed because events do not unfold as he/she would like, this depression is not necessarily compensable." Review Office further stated, "…the workers compensation system cannot be held responsible for this worker's actions that have placed him in the position of no longer having employment with this company. Had these actions not occurred, there is every indication that the company would have continued to employ the worker in suitable employment that would have respected his compensable left forearm injury." In December 2003, the claimant's advocate appealed this decision to the Appeal Commission, and an oral hearing was arranged.

Reasons

The worker in this case suffered a left arm injury at his workplace in 1995, and ultimately had his wage loss benefits terminated on September 16, 1998. He is seeking the restoration of wage loss benefits after that date, stating that he was and continues to be unemployable from that date forward.

The claimant represented himself at the hearing with the assistance of an interpreter and an advocate. The employer was represented by legal counsel.

After a thorough review of the file materials and all the evidence presented by the worker and an advocate for the employer, we find that the worker is not entitled to the payment of wage loss benefits after September 16, 1998. Our reasons follow.

Legislation

Section 39(1) of the Workers Compensation Act (the Act) provides that wage loss benefits are payable where an injury results in a loss of earning capacity. Section 39(2) notes these benefits are payable until the loss of earning capacity ends, as determined by the board. Section 22 places a further obligation on the worker to participate in their recovery, from both a medical and wage loss perspective. It states:

Where an injured worker persists in unsanitary or injurious practices which tend to imperil or retard his or her recovery, or refuses to submit to such medical or surgical treatment as in the opinion of the board is reasonably essential to promote his or her recovery, or fails in the opinion of the board to mitigate the consequences of the accident, the board may, in its discretion, reduce the compensation of the worker to such sum, if any, as would in its opinion be payable were such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.

Arguments:

The claimant presented his position in an articulate and well-organized manner. He argued that his claim was badly managed, and that his dealings with his employer and the Workers Compensation Board (WCB) led to personal and financial stresses that led to his extreme actions on September 16, 1998, and his subsequent incarceration ending in 2001. He also argued that his ongoing medical problems beyond 2001, for which he is now receiving CPP disability, are a direct result of his 1995 compensable injury, and have rendered him totally disabled. The claimant stated that his ongoing problems with his left arm, as well as a heart attack, quadruple bypass surgery, and depression were and are all causally connected to the stress that he had gone through in the last few years. These difficulties - and the confrontation with his employer -- were directly related to the workplace accident, and thus the WCB should be responsible for his wage loss benefits beyond September 16, 1998.

The employer argued that the worker's actions on September 16, 1998 were a personal act that prevented the worker from ever again participating in a modified duty program with employer. Counsel for the employer also advanced the position that the employer had been involved in three previous return to work programs with the worker and there is no indication that a fourth program, after the claimant's July 1998 aggravation, could not have been developed as well. The employer relied on Section 22 of (the Act), which places an obligation on a worker to mitigate the effects of a workplace accident, in this case, to avoid behaviours which would jeopardize his ability to earn wages.

Evidence:

In our review of the file, we note that the worker's injuries to his left arm in 1995 were severe, requiring surgeries in 1995 and 1997. Ultimately, the WCB awarded a Permanent Partial Impairment (PPI) award of 23% to the worker, in 2002, for his injuries. The evidence also discloses that after the workplace accident, the worker was unable to return to his pre-accident job duties, because of the medical restrictions that arose from his injury. Instead, the worker returned to modified job duties with his employer that respected his medical restrictions. The WCB worked with the employer in the selection of appropriate positions. Over the next three years, the worker had continuing medical problems that led to a series of adjustments of modified duties and workplace restrictions, in which the WCB, the worker, and the employer participated.

By 1998, as noted in the background, other factors came into play. In January 1998, a confrontation between the worker and his supervisor led to a shop steward filing a grievance against the worker. This led to a 3.5 month suspension of the worker, without pay, following which he returned to modified duties. The worker continued in modified duties from May to July 1998, when he again experienced problems with his left arm. Initially, the WCB did not accept responsibility for the claimant's difficulties in July, based on a comment about a bee-sting made by a co-worker, and passed on by the supervisor to the WCB. Benefits for this period only were restored by a later Review Office decision in 2002.

In the meantime, the WCB had declined to pay wage loss benefits for January to May 1998, when the worker had been suspended without pay. He had appealed this issue unsuccessfully to the Review Office, and then filed an appeal with this Appeal Commission, which was scheduled to be heard on September 17, 1998. The file evidence discloses that rather than waiting for the appeal to be heard, the worker went to his workplace on September 16 with a gun, to confront a supervisor and elicit a "confession" about what had really transpired in January and July 1998. The worker was subdued, criminally charged, convicted, and eventually incarcerated until 2001.

The claimant's evidence is that medical management or treatment of his left arm was delayed for three years because of his incarceration. The claimant is on medication for pain, but no further interventions have been planned for his left arm injury. The claimant also had a heart attack in 2002 and quadruple bypass surgery. He advised at the hearing that his arteries were found to be seriously clogged. As well, the claimant has been diagnosed as having a depression. The claimant has been on CPP disability benefits since 2002, based on all these medical conditions.

Analysis:

We note that the worker has considerable remorse over the incident of September 16, 1998. The fact remains, though, that workers dissatisfied with how their claims are being managed have clearly defined rights under the Act, that allow them to appeal any decisions being made on their file.

In this case, the claimant was going through the appeal process in 1998, regarding his entitlement to wage loss benefits from January to May 1998. After being denied benefits for that period by the WCB adjudicator, his case had been considered by the WCB Review Office, and he (with a union representative) then filed an appeal with independent Appeal Commission, and was scheduled to have his issues heard on September 17, 1998.

The worker's actions on September 16, 1998, however regrettable they now are, had serious consequences for how his claim could be managed from that day forward. Firstly, the worker lost access to the medical system as a consequence of his incarceration, and no real treatment or medical management of his left arm difficulties was provided for a three year period. Secondly, the worker's incarceration meant that he was no longer available for light duties with his pre-accident employer. Thirdly, the employer terminated the worker for cause because of the incident at the workplace. As such, any possibility of return to work with the employer was and is no longer possible.

The worker's evidence at the hearing focused on a detailed history of the progress of his claim from 1997 to 1998, and the stress that he built up over that period of time because of how his claim was handled. He argued that his actions on September 16 cannot be separated from the stress, and thus he should not be penalized for his actions. We respectfully disagree with this position. In this regard, we note that the worker was charged and convicted of a criminal offence for his actions on September 16, 1998. This suggests to us that the worker was able to form criminal intent, and that he was not mentally incapacitated at the time of his actions. This finding is also supported by a psychiatric report dated October 8, 1998, one month after the incident, which states, "Notwithstanding the above, there is no clinical evidence that [the worker] suffers from a major mental illness such as depression, mania or psychosis. Certainly stress, sleep deprivation, language barrier, and intoxication were factors that contributed to his impaired judgement." As such, we find that the worker had initiated a personal act and is fully responsible for its consequences.

Section 22 of the Act does require the worker to participate in the medical treatment of his condition, and assist in reducing the costs and consequences of his compensable injury. This section also requires the worker to be available for work. We find that the worker's personal acts on that day clearly fall within the types of conduct that this section contemplates. He removed himself from regular access to the healthcare system, and from any possibility of returning to modified duties with his employer during the period of his incarceration. We would therefore suspend the worker's benefits for the period of his incarceration.

We also need to consider whether the worker is entitled to benefits after the completion of his incarceration, as he would be again available for work at that time. Based on the arguments that were presented, we must consider whether the worker was in a "loss of earning capacity" position at that time --- in other words, could he have returned to work and earned his pre-accident wages, based on his compensable medical restrictions at that time?

The medical evidence indicates that the claimant continued to have problems with his left arm, and later had a number of other medical conditions come into play, ultimately leading to his applying for and receiving CPP disability benefits. This is effectively a declaration that the worker is unemployable. These medical conditions include depression, a heart attack and subsequent treatment and related medical concerns.

In considering the worker's entitlement to benefits after the period of incarceration, we are limited by the Act to consider only those medical conditions (and medical workplace restrictions) which are causally related to the original workplace injury. We will review his current medical conditions, to determine which of his medical conditions are related to his work.

The worker argues that his heart condition is related to stress and his dealings with his employer and WCB. However, we note there is no medical evidence on file pointing to a causal link between the worker's heart condition and the workplace injury. To the contrary, the worker's evidence at the hearing that all four arteries were clogged suggests the presence of genetic or lifestyle factors in the development of his heart problems. We find on a balance of probabilities that the worker's heart condition is not causally related to his workplace injury.

As to the worker's depression, we note that a psychiatrist's report dated October 8, 1998, shortly after the September 1998 incident, found no clinical evidence of a depression or any other mental illness. A second psychiatrist wrote a letter supporting the worker's application for CPP disability, dated December 12, 2001, and provided a diagnosis of a major depressive episode of moderate severity. The psychiatrist indicated that "[the claimant's] mental condition meets the criteria of "severe and prolonged", and indicated that this situation has existed since 1999. We note that this diagnosis arose well after the September 16, 1998 incident, at a time period when the worker would have been dealing with the fall-out (criminal, personal, family, and financial) of that incident. Based on these reports, we find on a balance of probabilities that the worker's depression is not causally related to his workplace injury.

Therefore, the worker's left arm problems remain as the only medical condition that is compensable at this time. We note that the severity of his left arm injuries was confirmed by the 2002 PPI rating of 23%. However, we also note from the medical evidence that the worker's left arm condition is relatively unchanged from what it was in 1998, with no further medical intervention being planned for the arm. The worker's evidence is that there is more pain.

We note that permanent workplace restrictions were formalized in October 1997 by a WCB medical advisor. The worker was considered able to work full time, but with restrictions dealing with gripping and weight loads. The restrictions were revised in March 1998 for the worker to avoid cold and wet work environments. We find there is no medical evidence on file to suggest that these restrictions with respect to the left arm have in any way changed. Ignoring (as we must) the worker's non-compensable medical conditions and the medical restrictions that would arise from those conditions, we find on a balance of probabilities that the worker would have been able to return to a light duty position with the employer after the completion of his period of incarceration.

However, based on our review of the file, we note that the worker's actions on September 16, 1998 completely removed the possibility of the worker ever returning to work with the employer. We also note that the employer had successfully worked at least three times with the WCB and the worker to establish modified duties for the worker, and had paid the worker at his pre-accident wage levels during those accommodations. While the worker questioned if he would have been accommodated again by the employer, we find that the past participation of the employer in accommodating the worker suggests that future accommodations would have been made, if they were required.

We therefore find, on a balance of probabilities, that the worker's compensable workplace restrictions would have allowed him to return to work with the employer and to receive his pre-accident wages. As for the worker's inability to access that job with that employer, we find on a balance of probabilities that it was the personal actions of the worker on September 16, 1998, that have prevented him from earning his pre-accident wages with his employer after his period of incarceration, and not the original compensable injury.

Accordingly, we would dismiss the worker's appeal.

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 17th day of September, 2004