The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on November 14, 2005, at the request of a worker advisor, acting on behalf of the worker.

Issue

Whether or not the worker should have been deemed capable of earning minimum wage after September 17, 2003.

Decision

That the worker should have been deemed capable of earning minimum wage after September 17, 2003.

Decision: Unanimous

Background

On August 30, 1999, the worker sustained an injury when a spark from a spot welder went through his glove and a metal sliver lodged in his right index finger. The Workers Compensation Board (WCB) accepted the claim and wage loss benefits were paid to the worker commencing September 2, 1999.

The worker was originally scheduled to undergo surgery to remove metal fragments from his finger on September 10, 1999, however he was concerned about the surgery and cancelled it. It was subsequently rescheduled to October 12, 1999. The worker returned to light duty work on September 27, 1999 pending the surgery.

On October 6, 1999, a WCB adjudicator suspended the worker's wage loss benefits for the period from September 10, 1999 to October 11, 1999 due to the fact that the worker had delayed his surgery and hence his recovery from the effects of his work injury. The adjudicator relied upon Section 22 of The Workers Compensation Act (the Act) which allows the Board to reduce the compensation of a worker where a worker fails to mitigate the consequences of a work injury. This decision was appealed by the worker to Review Office.

When the worker attended a second physician on October 12, 1999 for possible excision of the foreign bodies in his finger the wound had healed and he was experiencing no residual symptoms. He was advised that removal of the fragments could result in chronic pain and tenderness, and therefore his physician recommended that observation be continued.

In a decision dated March 24, 2000, Review Office concluded that the worker had not violated Section 22 of the Act as he had returned to work after a very reasonable period of time. He was therefore entitled to the payment of wage loss benefits to the date of his return to work, September 27, 1999 inclusive and final.

On March 4, 2003 the claimant reinjured his finger while at home. He received short term disability benefits until August 17, 2003 at which time the benefits were terminated on the basis that his condition resulted from an aggravation of a previous work-related injury. He therefore requested WCB benefits.

The worker underwent surgery on August 29, 2003 for the removal of the foreign bodies in his fingertip. Thereafter he continued to experience pain and x-rays revealed that some small fragments remained in his finger.

On September 18, 2003 the worker attended the WCB and advised his case manager that he was laid off from work and that he had filed a claim with employment insurance (EI). Thereafter the worker has remained in a lay off position with his employer.

Following a review of the medical information on file, the case manager issued wage loss benefits to the worker as a recurrence effective August 29, 2003 to September 17, 2003, that being his anticipated return to work. On September 23, 2003 the worker provided a doctor's note extending his time loss for an additional three weeks. A progress report issued by the same physician on September 26, 2003 noted that the worker was capable of alternate or modified work providing he "minimize use of right hand", and that the restriction should remain in place for a period of three weeks.

On October 2, 2003, the worker advised his case manager that he was still unable to return to work as his finger was black and blue, he was in a lot of pain and had a burning sensation in his finger. He stated that while he had been told to contact his employer about modified duties after surgery, he had not done so as further surgery was being contemplated.

On November 13, 2003, the WCB medical advisor advised the case manager that in his opinion the August 29, 2003 surgery was related to the original compensable injury. He recommended occupational therapy and physiotherapy for desensitization, and outlined restrictions including the need to avoid pincer grasp with the finger, avoid temperature extremes and use proper gloves.

On November 18, 2003, the worker advised his case manager that he was receiving EI benefits and that he had not told EI about his WCB claim. The worker indicated that he had applied for a couple of desk jobs and that he could 'push a pencil' but could not do his previous job. He had not contacted his former employer since August 2003.

On November 25, 2003, the case manager informed the worker that no further benefits were payable beyond September 17, 2003 as in her view the worker was capable of performing his job duties of a spot welder providing he wore appropriate protective gloves or a digital gel cap. As she concluded that the worker was capable of performing his job duties she determined that no loss of earning capacity had been established.

On December 5, 2003, the treating surgeon sought and ultimately obtained the WCB's approval for excision of neuroma and neurolysis of the radial digital nerve of the right index finger. In a progress report dated December 20, 2003, the treating surgeon indicated that the worker "may be able to work if light duty is available".

The worker underwent the surgery on April 14, 2004. Wage loss benefits were effective April 14, 2004 and were to continue for the normal recovery period, which was expected to be two to three weeks. That period was subsequently extended to May 26, 2004 at which time his surgeon had indicated the worker would be fit to return to work.

In a submission dated July 14, 2004, a worker advisor asked the case manager to reconsider her decision of November 25, 2003 terminating the worker's wage loss benefits effective September 17, 2003. She provided a report from the treating physician dated July 8, 2004 which supported the worker's contention that wearing a gel cap would not allow him to perform his regular duties as he would continue to experience pressure on his finger. This was subsequently confirmed by the WCB medical advisor following a referral from the case manager.

In a decision dated February 16, 2005 the case manager extended benefits to the worker for the period beyond September 17, 2003 on the basis that the worker's duties were outside his capabilities. However the case manager concluded that the worker was not totally disabled by reason of his compensable injury in view of the fact that he had received regular EI benefits and given the restrictions that had been previously outlined by the WCB's medical advisor. Accordingly, on the basis of section 22 of the Act, the case manager determined that the worker was partially disabled and capable of securing employment at the provincial minimum wage level dating back to September 18, 2003. She confirmed her decision in a letter dated March 31, 2005 to the worker advisor in which she noted that the worker had failed to put forth any effort with respect to finding employment.

On April 7, 2005, the worker advisor appealed the case manager's decisions of February 16, 2005 and March 31, 2005 to Review Office. On August 18, 2005, Review Office agreed that it was reasonable to expect that the worker was capable of earning the provincial minimum wage after September 17, 2003. In doing so Review Office rejected the worker's position that the WCB could not reduce a worker's compensation for failure to mitigate under Section 22 of the Act without first offering mitigation assistance to the worker in accordance with WCB policy 44.80.30.20, Post accident Earnings - Deemed Earning Capacity.

On August 26, 2005, the worker advisor appealed Review Office's decision and a non-oral file review was arranged.

Reasons

The issue before us was whether the worker should have been deemed capable of earning minimum wage after September 17, 2003.

The worker took the position here, as before Review Office, that absent a vocational assessment plan the WCB could not deem the worker as being capable of earning minimum wage under section 22 of the Act. Section 22 provides:

Where an injured worker . . . 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 . . . if the worker . . . had mitigated the consequences of the accident."

Section 22 creates a requirement and expectation that a worker will be a full participant in attempting to ensure full and timely recovery from the effects of a compensable accident. Where a worker fails to do so, the legislation allows the WCB to reduce the worker's compensation to such sum as would in its opinion have been payable if the worker had mitigated the consequences of the accident.

The worker argued that the Review Office had erred in concluding that the WCB had the right to estimate or deem a worker capable of earning wages without a vocational rehabilitation assessment or plan in place.

In adjudicating a claim for wage loss benefits the WCB is required by subsection 39(1) of the Act to determine the worker's loss of earning capacity. WCB Board Policy 44.80.30.10 Benefits Administration - Wage Loss: Establishing Post-Accident Earning Capacity provides that a worker's earning capacity will be "based on earnings that best represent the amount the worker is capable of earning after the accident" and may include either actual or estimated earnings. It further provides that the WCB may use deemed earnings rather than actual earnings under circumstances described in policy 44.80.30.20 Post-Accident Earning Capacity. These earnings include income that the WCB deems the worker capable of earning, even though the worker is not actually earning this income.

The worker argued that in the absence of an Individual Written Rehabilitation Plan as described under Policy 44.80.30.20, the WCB could not estimate the worker to be capable of earning minimum wage after September 17, 2003. Policy 44.80.30.20 states that deemed earning capacity is "typically demonstrated in the context of vocational rehabilitation activity". That does not, however restrict the WCB from reducing the compensation of a worker in circumstances other than those described in the policy, providing of course that in its opinion the worker has failed to mitigate the consequences of the accident. A calculation of a worker's loss of earning capacity will take into account a number of factors, only one of which might be a deemed earning capacity under Policy 44.80.30.20. In this instance, the Review Office determined that the worker was capable of earning minimum wage after September 17, 2003 in light of compelling evidence as to the worker's ability to do so.

Without doubt the medical evidence in this case supports the conclusion that the worker was capable of returning to some form of employment after September 17, 2003, albeit with restrictions and not at his place of pre - injury employment as he was then on a long term layoff position.

Subsequent to the surgery the worker's family doctor indicated on September 26, 2003 that the worker was capable of alternate or modified work. He was to minimize the use of his right hand for a period of three weeks.

On October 14, 2003, the worker's family doctor indicated that the patient was not able to work with his right hand due to the hypersensitivity at the index finger tip. His former occupation required him to use his hands a significant amount of time.

In due course the Board's medical advisor opined that the worker would not likely have been able to return to his regular duties on September 18, 2003 even with the use of the gel cap as he would still have been experiencing pain. The medical information did not, however, support the conclusion that the worker was totally disabled. Again on December 20, 2003 the worker's surgeon confirmed that he was capable of alternate or modified work, noting that the worker "may be able to work if light duty is available".

The worker's own conduct also leads to the conclusion that he was able to earn some income subsequent to September 17, 2003. He filed a claim with Employment Insurance as early as September 18, 2003. On October 2, 2003 he advised his case manager that he had not contacted his employer about modified duties. In any event, given that he was in a layoff position there was no opportunity to return to his former position, even with the restrictions set out for him. In the circumstances there was no alternative but for the worker to seek employment elsewhere. He failed to do so. On November 18, 2003 he confirmed to his case manager that he was "ready and willing to work". When asked on that date whether he had applied for any jobs the worker advised that he "could push a pencil" and had applied for a couple of desk jobs. He was, however, unable to provide the names of any companies to which he had submitted an application.

The evidence before the panel was entirely consistent with the conclusion of both the case manager and Review Office that after September 17, 2003 the worker was only partially disabled and was capable of returning to work. The worker failed to take any reasonable steps to secure employment and thereby failed to satisfy the positive obligation that rests upon him to mitigate the consequences of his injury. In the circumstances, we find that the WCB did not err in concluding that the worker was capable of earning minimum wage after September 17, 2003. Accordingly, the worker's appeal is hereby dismissed.

Panel Members

K. Dangerfield, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dangerfield - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 5th day of January, 2006