The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on December 15, 1999, at the request of the employer. The Appeal Panel discussed this case on December 15, 1999.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond October 6, 1998; and

Whether or not the claimant is entitled to vocational rehabilitation assistance.

Decision

The claimant is not entitled to the payment of wage loss benefits beyond October 6, 1998; and

The claimant is not entitled to vocational rehabilitation assistance.

Background

The claimant stated that during the course of his employment with a mining company on January 23, 1997, a draw bar went sideways striking his left lower leg. Medical information revealed that the claimant sustained a crush injury to the left lower leg and had been hospitalized on several occasions for debridement and skin grafting. The claim was accepted by the Workers Compensation Board (WCB) and benefits commenced on January 26, 1997.

On April 15, 1997, a WCB medical advisor determined that the claimant’s wounds had healed and the skin grafts were stable. It was recommended that the claimant continue with physiotherapy treatment and could return to regular work in 6 to 8 week’s time. File information showed that the claimant did not return to regular duties until September 4, 1997, due to pain and swelling in his left leg. Wage loss benefits were paid to August 6, 1997, based on the examination findings of his attending physician. Medical treatment in connection with the claim was paid to October 10, 1997, inclusive.

Following review of the claim in September 1998, a WCB medical advisor felt that the claimant should be examined for a permanent partial impairment award as it had been more than a year since his compensable injury.

The claimant was assessed on the Fall North Trip on October 22, 1998. At this time, the claimant told the WCB medical advisor that he had returned to work with the accident employer following recovery from his injury but the company ceased to function. He then found a job with a second drilling company and had to stop work because of swelling and pain in his leg. The claimant stated that when he rises in the morning he feels discomfort in his lower left leg and that his leg pain worsens as the day goes on.

Following assessment of the injury site which included ankle range of motion and inspection of the scar, the medical advisor suggested that the WCB should await further medical reports from the claimant’s own physician. This suggestion was made in view of the fact that the claimant’s job (i.e. bilateral use of his feet for clutches and horns) aggravated his injury with increased swelling and discomfort.

During a telephone conversation on November 13, 1998, the claimant advised an adjudication supervisor that he returned to work with the accident employer in August 1997 to a sedentary job skipping ore to the surface. He worked until he was laid off in January 1998 and then collected UIC for a period of time. He was then hired with another company in July 1998 as a heavy equipment operator but was given a termination notice. The claimant indicated that he cannot work since leaving the second company as his leg swells up and he was in immense pain. His doctor prescribed T3’s for a while but then he took regular Tylenol because the cost of T3’s became too expensive.

On November 18, 1998, the claimant provided additional details regarding his work duties with the second drilling company. The claimant indicated that he was operating heavy equipment such as loaders and cats. He would sit in the loader but he had difficulty with operating the controls because of his leg. The leg would swell up so much that he couldn’t get his work boot on. The claimant said he did not make ongoing complaints because he wanted to work and did not want to make a fuss. He continued to see his doctor and was prescribed painkillers. The claimant advised that he worked up until October 6 and then quit his job. The claimant said his leg was so swollen and that he couldn’t take the pain any longer. The swelling would be from the bottom of the left foot up to the calf. The claimant related his current problems to the 1997 injury.

Medical reports were received from two of the claimant’s treating physicians. On November 18, 1998, the attending physician indicated that the claimant complained of pain in his left ankle especially on walking. The left ankle movement was full and there was swelling noted. The claimant was prescribed medication and a stocking. On December 16, 1998, a second physician outlined the dates the claimant was seen between September 24, 1997 and October 21, 1998, for a painful left leg. According to the physician, on October 21, 1998, the claimant demonstrated swelling of the left leg after long standing especially on extended work shifts of 12 hours.

On March 29, 1999, a WCB medical advisor reviewed the above medical reports and provided the following opinions to primary adjudication:

- the current diagnosis was questionable swelling of the left foot.

- there may be a direct cause-effect relationship between the current diagnosis and the compensable injury but this would not prevent the claimant from working.

In a letter dated April 20, 1999, the claimant was advised that the WCB would not be accepting responsibility for further wage loss benefits as the evidence did not support that he was incapable of working. On April 29, 1999, the claimant appealed this decision to Review Office.

On May 20, 1999, the second treating physician wrote to the WCB confirming that the claimant had ongoing problems with his leg and had been suffering from pain and swelling when he does physical activity. “He has therefore been restricted in using heavy equipment since the 6^th of October 1998 and this has been directly as a result of his work related injury.”

In a decision dated May 11, 1999, Review Office determined that the claimant was not entitled to the payment of any wage loss benefits beyond October 6, 1998.

Review Office noted that since the claimant returned to work in September 1997, he complained to no one in a position of authority nor to a co-worker concerning any difficulty that he experienced as a result of the original injuries sustained on January 23, 1997. When the claimant was examined by the WCB medical advisor on October 22, 1998, there was no swelling noted when comparing the left injured leg to the right uninjured leg (ankle) other than some tenderness at the scar site. In addition, Review Office commented that the claimant’s own physician did not provide information to substantiate he was unfit for work. As Review Office had no medical documentation to substantiate that the claimant remained totally disabled beyond October 6, 1998, as a result of the January 23, 1997, compensable injury, it (Review Office) was unable to accept the claimant’s own statement that he was disabled as a result of the injuries that he had sustained. Review Office therefore concluded that the claimant was not entitled to additional wage loss benefits.

In June 1999, a WCB adjudicator met with the WCB medical advisor to further discuss the case. In a memo dated June 17, 1999, the adjudicator documented that the claimant suffered a compartment syndrome injury, which was a serious type of injury and could be easily aggravated by physical activity. Given the fact that the claimant had to climb up and down ladders, scoop trams and walk on uneven surfaces, his swelling can show up after a day’s work. It was also noted that when the medical advisor examined the claimant in October 1998, the claimant was sedentary and therefore it explained why there would be no swelling. The findings would have likely been different had the claimant been asked to complete a full day of physical work. The medical advisor agreed that given the nature of the diagnosis and the claimant’s physically demanding job, he should permanently refrain from climbing ladders/ scoop trams, etc. and refrain from walking on uneven surfaces. The claimant’s condition was not totally disabling and he should be referred to vocational rehabilitation for assistance and ongoing benefits.

Based on the above, Review Office determined on June 25, 1999, that the injuries sustained by the claimant on January 23, 1997, continue to become symptomatic depending upon the work or activities performed or is involved in. At times, this may disable the claimant to the extent that he was unable to continue with those activities. Review Office was satisfied that the additional information warranted that benefits be paid to the claimant beyond October 6, 1998, being the date the claimant declared himself unfit for work. Review Office also referred the case to a Vocational Rehabilitation Consultant to assist the claimant in seeking and obtaining alternate employment within his capacity.

On September 15, 1999, the accident employer appealed Review Office’s June 25, 1999, decision and an oral hearing was convened.

Reasons

Chairperson McCullough and Commissioner Finkel:

The claimant was injured on January 23, 1997, while working in his regular job as a skip tender and cage tender in a mine. It is understood that the claimant’s injury was a crush type injury to the left leg. He later returned to work with the accident employer in his pre-accident job, and continued in that position until January 1, 1998 when he was laid off because of mine shut down. The claimant subsequently worked for another employer as a heavy equipment operator, and left that job on October 6, 1998 complaining of a flare-up of his left leg symptoms. The accident employer is disputing whether the claimant is entitled to receive payment of wage loss benefits beyond October 6, 1998 and whether or not the claimant is entitled to ongoing vocational rehabilitation assistance.

After being laid off in December 1997 due to the accident employer losing their contract and subsequently closing, the claimant collected unemployment insurance benefits for a short period of time, and then found work with another company as an equipment operator. The claimant quit this employer on October 6, 1998, claiming that he had a recurring injury to his left leg. The claimant, however, did not seek medical attention for his injury until some two weeks later, on October 21, 1998. The claimant did not return to the second employer after leaving work on October 6, 1998 and has essentially remained unemployed since that date. The claimant’s position is that he is entitled to workers compensation wage loss benefits and vocational rehabilitation assistance after this date.

After examining the files and questioning the worker, we note that the medical evidence from a call-in examination by a Workers Compensation Board medical advisor in October 1998, indicates that the claimant was diagnosed with a compartment syndrome injury to his left leg. The medical advisor later sets out permanent restrictions with respect to the compensable injury, of no climbing ladders/sweep trams and the like, and to refrain from walking on uneven surfaces. The claimant’s evidence at the hearing was that there was no change in the medical status of his left leg condition between December 1997, when he was working, and the date of the hearing in December 1999. The claimant has indicated that his leg swells occasionally at night and that if he ices it in the morning it comes back to normal size within an hour.

At the hearing, the claimant was asked questions about his ability to perform his different jobs, given the condition of his left leg. Dealing with his pre-accident job and his subsequent return to that job, considerable evidence was provided about the job duties of the skip tender and cage tender positions. The claimant was asked by the panel regarding his ability to do his original duties after his return to work in September 1997, “Were you able to do the job generally?” The claimant replied, “Oh, yes. Oh, yes. Yes, yes. There was no problem there because I was sitting down quite a bit.”

The claimant was also asked, “When you left at the lay off in December 1997, was there any – if the job was available would you have been able to continue doing it?” The claimant answered, “Oh, yes, sure there, doing that job, yes.” When asked, “How about today?” the claimant replied, “Sure, probably, yes.” The claimant was then asked, “Are there jobs available at [employer]? Are there similar jobs in the area? Like, physically you can handle those kinds of jobs?” The claimant answered, “Well, that kind of job, yes. Yes, if there’s not too much oversize I could. At [worksite] there was no oversize, like, we had a grizzly there. And everything come down it was nice and small, and it went into the skip and you ran it up from the skip tender to – or the hoist man took it up.”

The claimant’s evidence is that his second job, operating a sweep tram, did cause flare-ups of his left leg condition, and his representative argues that this second job was outside the claimant’s restrictions. We note that the restrictions later placed by the WCB medical advisor on the claimant supports the assertion that the second job would be outside the claimant’s restrictions. There is, however, no evidence on file to suggest that the claimant suffered any wage loss after leaving the second job. His evidence at the hearing was that the flare-up was not extraordinary and would have settled by the next day, and that he did not receive any medical treatment for his leg until 15 days after he left his job.

Subsection 39(2) of the Workers Compensation Act indicates that wage loss benefits are payable until the loss of earning capacity ends. In the case of the claimant, we find that the evidence supports a finding that the claimant does have a compensable injury with permanent restrictions. The claimant has, however, demonstrated through his successful return to work to his pre-accident job and his current interest in the same job, that the duties of this position were within his permanent restrictions. As such, we find that the claimant was and is capable of working as a cage tender or skip tender which was his pre-accident position, but that he is unable to do so not for medical reasons, but because of the company’s subsequent closure of the mine and the consequent layoff of the claimant from his position.

Based on our review of all the evidence on file and presented at the hearing, we find, on a balance of probabilities, that the claimant was capable of returning to his pre-accident employment after October 6, 1998, and that his flare-up on October 6, 1998 did not result in a change in his medical status that resulted in any loss of earning capacity. We therefore conclude that the claimant is not entitled to any wage loss benefits beyond October 6, 1998 and would grant the employer’ appeal on this issue.

Regarding the second issue, under subsection 27(20) of the Workers Compensation Act, the claimant is only entitled to vocational rehabilitation assistance once a long term loss of earning capacity has been established. As noted in issue one, we find that the claimant’s permanent restrictions from his compensable injury have not precluded him from being a skip or cage tender, and he has thus not suffered a long term loss of earning capacity relative to his pre-accident employment. As this prerequisite for vocational rehabilitation assistance has not been met, the claimant is not entitled to vocational rehabilitation assistance under the Act, and we accept the employer’s appeal of this issue as well.

Panel Members

P. McCullough, Presiding Officer
A. Finkel, Commissioner 

Recording Secretary, B. Miller

P. McCullough - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 9th day of February, 2000

Commissioner's Dissent

The claimant was asked several questions at the hearing in regard to this issue and stated;

Q: What was the face of the stock pile like?

A: The face, it was bad.

Q: We don’t know what bad is. What is bad?

A: Oh, it’s lots of hangups, it was still frozen, you know, like, it was dumped there for about 10 years with rock trucks and dozers running all over it all the time. It was lots of hard digging and lots of oversize, lots of boulders, you know.

Q: So in fact you would have to continuously use your brake and throttle at the same time to dig, and yet hold the machine in position?

A: Why definitely, yes. You can’t spin your tires, you can’t wear tires out.

Q: Yes. In fact, if you did spin your tires you would cut that tire?

A: Why certainly.

In the opinion of the minority, the claimant’s interpretation of the demands of the job are probably more accurate that those of the employer, who was never at the job site in question.

With full respect to the majority it cannot be determined that the reason that the worker is unemployed is due to economic reasons. There is no evidence on file that would support that conclusion. The appealing employer stated that there has not been work up there for 14 months. That may be true but only in the narrow context of his firm. There is nothing on file or that came up at the hearing that would support that economics restricts this injured worker from finding employment. The restrictions on his finding or maintaining employment are the effects of his compensable injury. For this injury, he has been awarded a permanent impairment award of 5.7%. It can’t be determined that he has recovered to his pre-accident state and return to his pre-accident employment since the restrictions eliminate working in the areas that he has spent the majority of his life doing (trucking and heavy equipment operation).

The claimant is entitled to benefits and assistance from the WCB since the injury he suffered has left him with restrictions which preclude his return to work in his field. It is also the opinion of the minority that the injury suffered by the claimant is enough to disqualify the claimant from finding employment, as none of the employers in the field will hire a worker who suffers any type of a disability. It is for this reason that the WCB is considering rehabilitation so that he may return to the workforce as a productive member.

R. Frisken, Appeal Commissioner