The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on November 24, 2005, at the request of a worker advisor, acting on the worker's behalf. The Panel discussed this appeal on the same day.

Issue

Whether or not the worker is entitled to partial wage loss benefits.

Decision

That the worker is entitled to partial wage loss benefits.

Decision: Unanimous

Background

In January 1991, the worker filed a claim with the Workers Compensation Board (WCB) for bilateral carpal tunnel syndrome (CTS) that she related to the repetitive nature of her work activities as a rewinder/shipper. The WCB accepted the claim for compensation and temporary total disability (TTD) benefits were paid to the worker commencing January 21, 1991.

On May 29, 1991, the WCB determined that the worker had recovered from the effects of her compensable accident and was not entitled to further benefits. This decision was appealed by the worker and the case was forwarded to Review Office. On August 23, 1991, Review Office overturned the decision and restored the worker's benefits. It also accepted responsibility for a surgical procedure that had been carried out to the worker's left wrist on August 9, 1991.

On February 5, 1992, the WCB determined that the worker was fit to return to her regular work duties. The worker appealed this decision to Review Office and then to the Appeal Commission. In a decision dated September 22, 1992, the Appeal Commission determined that the worker continued to experience pain and disability by reason of her wrist condition beyond February 11, 1992 and was entitled to vocational rehabilitation benefits.

Based on a WCB call-in examination on December 17, 1996, the WCB determined that the worker was capable of light duties with the restriction to avoid lifting greater than 20 pounds for a period of three months. Following the three month period, the worker would be considered capable of resuming full duties without compensable restrictions.

On April 9, 1997, a vocational rehabilitation plan was developed for the worker with the vocational goal of Retail Sales, National Occupational Classification (NOC) #6421. It was noted that the worker was to participate in a graduated return to work program over an eight week period and was expected to return to full duties by May 17, 1997. The anticipated earning capable was listed as being $240.00 per week.

On May 13, 1997, the worker was advised that the WCB was no longer accepting responsibility for her bilateral CTS condition effective May 20, 1997 or for any restrictions which would limit her from performing her pre-accident duties as a result of her CTS condition.

In a letter dated May 13, 1997, a Vocational Rehabilitation Consultant (VRC) advised the worker that her benefits were being reduced based upon $6.00 per hour or $240.00 per week effective May 17, 1997. The VRC noted that the worker was dismissed from her graduated return to work position as she only increased her hours to four hours per day and should actually have been at eight hours per day as per the vocational rehabilitation plan.

On September 4, 1997, a worker advisor appealed the WCB's decision of May 13, 1997 and referred to the opinion expressed by the worker's treating physician dated April 24, 1997.

In a September 19, 1997 decision, Review Office requested a Medical Review Panel (MRP) under subsection 67(4) of The Workers Compensation Act (the Act).

Based on the MRP's opinion of December 8, 1997, Review Office accepted that the worker had ongoing bilateral CTS which necessitated her to avoid excessively repetitive work with her wrists. Review Office also determined that the worker was not entitled to receive payment of wage loss benefits beyond May 20, 1997 as the MRP agreed that the graduated return to work program undertaken between March and May of 1997 was appropriate.

In a letter to the WCB dated March 15, 2002, the worker indicated that her bilateral CTS condition had not abated and she was requesting wage loss benefits and such compensation as deemed appropriate.

On May 14, 2002, a WCB adjudicator asked the worker to provide the WCB with additional information concerning her ongoing bilateral wrist difficulties, details of any time lost from work since 1997, etc. A response from the worker was received dated July 19, 2002. In particular, the worker indicated that she was earning $10.57 per hour at the time of her compensable injury "…not to mention what wages I would be earning if I were employed at this job with no repetitive strain injury to deal with. I believe that I am entitled to the difference of wages of approximately $2.00 per hour since working from April 12/00 to present time…"

On November 26, 2002, an adjudicator with Rehabilitation & Compensation Services advised the worker of the following with regard to her request for additional wage loss benefits:

"You have demonstrated your ability to work since 1997 and advised me you have not lost time from work as a result of your carpal tunnel syndrome. You indicated that you have worked full time since April 2000 demonstrating your ability to work full time with no complaints of ongoing difficulties to your employers. Therefore, in my opinion, you are not entitled to further wage loss benefits from the Workers Compensation Board."

In a letter dated February 12, 2003, the worker appealed the above decision to Review Office.

On March 27, 2003, Review Office advised the worker that it would not consider her appeal at this time as the WCB adjudicator handling her claim was still reviewing her case.

In a further decision dated June 18, 2003, the adjudicator advised the worker that no changes would be made to her decision of November 26, 2002. The adjudicator noted that the worker had mild right sided CTS in 2001 and 2002 and that normal findings were found in her left wrist. The adjudicator commented that it was the opinion of a WCB impairment awards medical advisor that the worker required no restrictions and was capable of full work duties. On October 31, 2003, the worker appealed the decision to Review Office.

On January 30, 2004, Review Office determined in part, that the worker was not entitled to payment of partial wage loss benefits. Review Office found no reason to conclude that the worker was unable to earn her pre-accident level of earnings. Review Office noted that the recent impairment examination did not show particular restrictions in range of movement. In 1997, the MRP and Review Office agreed that the graduated return to work program was appropriate for the worker's restrictions and that it would have resulted in no loss of earnings for the worker. Review Office noted that the worker chose to work in a number of occupations that did not pay her pre-accident salary and that this could not be blamed on her CTS condition.

On September 7, 2004, the worker underwent left carpal tunnel surgery and responsibility for the procedure was accepted by the WCB.

In a further letter dated February 4, 2005, Review Office clarified its decision of January 30, 2004. Review Office believed that the worker had not fully recovered from her compensable injury, however, there had been sufficient functional recovery to allow her to have worked and earned her pre-accident level of earnings.

On July 21, 2005, the Appeal Commission received an appeal application from a worker advisor appealing Review Office's decision concerning the worker's entitlement to payment of partial wage loss benefits. On November 24, 2005, an oral hearing was convened to consider the worker's appeal.

Reasons

The issue before the Panel was whether the worker is entitled to partial wage loss benefits. For the appeal to succeed on this issue, the Panel must find that the worker suffered a loss of earning capacity due to her compensable accident. The Panel did find that the worker suffered a loss of earning capacity due to her compensable injury and is therefore entitled to partial wage loss.

Evidence and Argument at Hearing

The worker attended the hearing with a worker advisor who made a presentation on her behalf. The worker answered questions posed by her representative and the Panel.

The worker advisor submitted that the worker is entitled to wage loss benefits retroactive to May 19, 1997. She pointed out that the worker had restrictions arising from her compensable injury which prevented her from recovering her pre-accident level of earnings. She stated that the worker mitigated the consequences of her accident in continuing to seek and attain employment to try and regain her pre-accident level of earnings, but has not succeeded.

With respect to the worker's vocational rehabilitation plan, the worker advisor did not know the origin of the increase in deemed earnings from $240.00 per week to $311.00 per week.

The worker described the circumstances around the termination of her involvement in a vocational rehabilitation plan. She stated that the WCB forced her to leave the job because she had not increased her hours beyond four hours per day. She stated her doctor limited her to these reduced hours.

She advised that she has not recovered from the injury. She is still unable to do repetitive work that involves a lot of strength. She advised that she has worked full time for the last six years other than when she was laid off from work. The worker described the various jobs she worked at and the pay she received. She also advised that she removed herself from the workplace for a period of time for personal reasons.

She indicated that she is claiming wage loss benefits from 1997 less periods that she removed herself from the workplace for personal reasons.

Analysis

The Panel has concluded that the worker is entitled to partial wage loss benefits. The Panel finds that the worker has not fully recovered from her compensable injury and notes this opinion is shared by Review Office in its decision of February 4, 2005. The Panel also notes that in January 1998, Review Office recognized that the worker should avoid work that involved excessive repetitive activity with her wrists and that this restriction appears to still be applicable. The Panel also notes that the worker had surgery on her left wrist in September 2004 and that the WCB accepted this surgery as related to the worker's compensable injury. Finally the Panel notes that the worker's vocational rehabilitation plan recognized the worker's inability to recover her pre-accident earnings and included an "Anticipated Earning Capacity" of $240.00 per week. The Panel notes that the compensable medical restrictions leading to this reduced earning capacity have yet to be removed.

At the hearing the worker advised that she has been able to work full time but that due to her compensable injury, she has not been able to find employment that recovered her pre-accident earnings. The worker also advised that she was unemployed for some periods since her benefits were terminated. The Panel accepts this evidence and finds that the worker has suffered a loss of earning capacity due to her compensable injury and is entitled to partial wage loss benefits except for periods when she removed herself from employment for personal reasons.

The worker's appeal is accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of January, 2006