The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") to suspend his wage loss benefits in 2004 due to his failure to participate in a vocational rehabilitation plan. A file review was held on September 14, 2011 to consider the matter.

Issue

Whether or not the worker's wage loss benefits should be suspended from September 21, 2004 to October 24, 2004.

Decision

That the worker's wage loss benefits should be suspended from September 21, 2004 to October 24, 2004.

Decision: Unanimous

Background

The worker suffered an injury to his left wrist in a work related accident on August 28, 1998. The diagnosis related to the claim was pisitriquetral joint arthritis and on November 17, 2000, surgery was performed to remove the left pisiform bone. The worker also has a 2001 claim with the WCB for a right wrist injury and a 2001 claim for bilateral carpal tunnel syndrome.

The worker has compensable work restrictions related to both his left and right wrists. Permanent left wrist restrictions outlined on file in 2004 were: No lifting greater than 10 to 15 pounds with the left hand including gripping, lifting, twisting, pushing and pulling. Temporary right wrist restrictions outlined in 2004 were: No lifting greater than 15 to 20 pounds with the right hand including gripping, lifting, twisting, pushing and pulling.

On July 13, 2004, a WCB case manager advised the worker that his case was being referred to the WCB's vocational rehabilitation branch to assess his transferable skills and to identify an appropriate vocational direction given that his accident employer was unable to accommodate him with employment that met his work restrictions.

On July 27, 2004, the worker met with a WCB vocational rehabilitation consultant (VRC) to discuss vocational rehabilitation options. The VRC recommended that the worker enroll into computer upgrading and that he complete a transferable skills analysis to identify a suitable occupational goal.

Between September 8, 2004 and September 16, 2004, the VRC spoke with the worker with respect to computer training. The worker voiced his concerns that he was unable to participate in computer training because of the condition in his wrists. After speaking with a WCB case manager and a WCB rehabilitation specialist, the VRC advised the worker on September 16, 2004 that his restrictions did not preclude him from participating in the computer training and that his computer training course would commence on September 20, 2004. The worker advised the VRC that he would not participate in the course as he had too much pain in his wrists.

In a letter dated September 16, 2004, the WCB case manager advised the worker that his vocational rehabilitation benefits were being suspended effective September 17, 2004 because of his refusal to attend computer training commencing September 20, 2004. The case manager advised the worker that the WCB did not consider him to be totally disabled and that computer training would be within his identified restrictions. On September 17, 2004, the worker called the WCB to advise that he would attend computer classes starting September 20, 2004.

File records show that the worker attended the computer training facility on September 20, 21 and 22, 2004 but did not do any keyboarding on these dates.

Medical information received from a plastic surgeon dated September 22, 2004 reported that the worker "recently attended a computer course and finds it extremely difficult to do any type of repetitive activities with his hands or fingers." Following his assessment, the surgeon noted that the worker should avoid heavy and repetitive activities with the wrists. The surgeon also opined that basic keyboarding activities should be possible for the worker based on his history.

A WCB senior medical advisor reviewed the worker's three compensation claims on October 5, 2004 and stated:

"…in relation to both his right and left wrists, [the worker] would not be a candidate now or in the future for work that involves frequent/repetitive keyboarding, as per data entry work. This view appears to be consistent with the September 22, 2004 comment of the treating plastic surgeon, wherein he reported that [the worker] should avoid heavy and repetitive activities with the wrist(s) and if possible, repetitive activities with the fingers.

Having said the above, [the worker] does not appear to have a medical condition for which restrictions on basic keyboarding use should be imposed. This appears to be consistent with the September 22, 2004 opinion of the treating plastic surgeon, that basic keyboarding activities should be possible with [the worker] based on his history.

On October 5, 2004, I spoke to the treating plastic surgeon, where the conditions involving [the worker's] right and left wrists and impressions regarding restrictions were reviewed. The treating plastic surgeon advised that the suggestions cited above regarding basic keyboard use were reasonable."

In a letter dated October 14, 2004, the worker was advised of the WCB's opinion that the basic keyboarding required in his training course was within his restrictions. The letter also stated:

"…given the nature of your wrist injuries and restrictions, you would not be a candidate now, or in the future, for work that involves frequent/repetitive keyboarding (such as data entry work). The Introduction of Keyboarding and Introduction to Computers courses that were offered at [training centre] are within your restrictions. You are not expected to keyboard constantly and you were allowed to work at your own pace. Basic keyboarding and entry level computer skills are required in many occupations and these courses were arranged to provide you with additional skills in preparation for the development of a vocational return to work plan. If you are now willing to participate in the computer courses, benefits will be reinstated effective the date you start the program."

On October 15, 2004, the family physician stated:

"[the worker] states that he attended the initial two hours of his first day of classes and the first 30 min of the second day but was unable to continue due to wrist pain. As noted in your letter and the assessment by [senior medical advisor], [the worker] is capable of basic keyboard use. The courses that [the worker] was to attend consisted of three hours per day of computer work. I agree with [the worker] that this does not fall within the suggestion of occasional keyboard use. I understand that almost any future employment would entail some computer use but the suspension of benefits based on inability to do three hours of continuous keyboarding at classes exceeds the suggestion of occasional or basic keyboard use."

Subsequent file records show that benefits were reinstated as of October 25, 2004 based on the worker's decision to attend the computer course starting October 25, 2004. In a letter to the worker dated October 29, 2004, the case manager indicated that the decision to suspend his benefits during the period he failed to participate in the computer courses would remain unchanged. The worker appealed the decision to Review Office.

On February 23, 2005, Review Office upheld the position that the worker's wage loss benefits should be suspended from September 21, 2004 to October 24, 2004. Review Office noted in the decision that the worker provided reports from two physiatrists (dated October 5, 2004 and October 7, 2004) in support that he could not participate in computer training. Review Office indicated that the "objective findings" provided by the two specialists showed a significant discrepancy in their measured range of motion which suggested that the findings were invalid. Review Office found that the worker did not participate to a satisfactory degree on September 20 and 21, 2004 and did not participate on subsequent dates until his return to the facility on October 25, 2004. Review Office therefore concluded that there was no reason to alter or rescind the case manager's decision to suspend the worker's wage loss benefits.

The worker submitted further appeals to Review Office requesting that his benefits be reinstated for the period September 21, 2004 to October 24, 2004. On November 9, 2007 and November 5, 2009, Review Office upheld its position that the worker was not entitled to benefits during this time period. On March 21, 2011, the worker appealed Review Office's decision to the Appeal Commission and a file review was arranged.

Reasons

Applicable Legislation

The worker is appealing the suspension of his wage loss benefits for the period from September 21, 2004 to October 24, 2004.

In addressing this appeal, the Appeal Commission is bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.

Section 22 of the Act has been applied by the WCB in this case. It addresses the worker’s responsibility to mitigate the consequences of an accident. It provides as follows:

Practices delaying worker’s recovery

22 Where an injured worker persists in insanitary 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 where such practices not persisted in or if the worker had submitted to the treatment or had mitigated the consequences of the accident.” (underlining added)

The Board has made WCB Policy 44.10.30.60 (Mitigation). The policy sets out the consequences of a worker’s failure to mitigate, providing as follows:

“If a worker is engaged in a plan designed to mitigate the effects of physical, vocational, psychological, or personal healthcare factors, and the worker demonstrates a lack of co-operation or effort or misses appointments without sufficient reason, or refuses to cooperate in the development of such a plan, the WCB may temporarily suspend benefits until the worker demonstrates a willingness to participate fully in the program, and if the worker persists, then the WCB may cease rehabilitative interventions and will pay benefits only to the extent, if any, that it deems would have been due to the worker had the worker adequately mitigated the consequences of the accident.”

Worker's Position

The worker completed an Appeal of Claims Decision form and provided a letter dated March 21, 2011. In the form the worker indicated that "The Voc Rehab Plan Requirements were outside his abilities and Review Office did not consider subsequent events in its decision (s)."

In his letter the worker states that WCB staff ignored the injury to his left wrist when formulating its computer based rehab initiatives. He submitted that WCB staff "dumped the existence of the CTS I have in order to accommodate the plan."

The worked stated that:

"When keyboard demands caused an increase in the intensity of my wrist problems, the clerical staff stated it felt that further medical investigation was not required. It stated that its paper review of part of my injuries had been run through its Healthcare services and its determination had been made. I stated that was grossly negligent and that I would get medical input on what was happening with all of my work injuries to ensure increased disablement would not result. But, it did anyway."

The worker said that benefit entitlement was suspended during the time it took for a medical evaluation to be done on all of his work injuries by a specialist. The worker submitted that many changes were made to the plan after the medical assessment. The plan became more flexible.

The worker stated that:

"Submission was made to the WCB to review my benefit entitlement for the period of suspension as the events have established that my attendance over the five weeks would not have impacted the outcome of my case. That this, along with the medical confirmation of my time missed being justified; justified rescinding the decision in place, was represented only to see the system reiterate its prior remarks."

Employer's Position

The employer did not participate in this appeal.

Analysis

The worker appealed the decision to suspend his wage loss benefits for the period from September 21, 2004 to October 24, 2004. For the worker's appeal to be successful the panel must find that the worker's refusal to participate in the vocational rehabilitation plan was reasonable. The panel did not make this finding. The panel finds that the worker's refusal to participate in the plan was not reasonable. The panel finds, on a balance of probabilities, that the worker is not entitled to wage loss benefits for the period September 21, 2004 to October 24, 2004.

In reaching its decision the panel notes:

• The worker indicated before the plan started that he could not perform keyboarding and was reluctant to participate.

• The worker attended the computer training for three part days: September 20, 21 and 22, 2004. The worker did not attempt any keyboarding in any observable manner on these dates.

• The worker advised his family physician that he attended training for three part days and was unable to continue the basic computer course due to wrist pain.

The panel considered the medical evidence on file in deciding whether the worker's withdrawal from the plan was reasonable. The panel notes that the medical evidence supports the WCB decision that the worker was able to participate in the plan:

• On September 13, 2004 a WCB rehabilitation specialist advised the VRC that the worker's restrictions do not prevent the worker from keyboarding. The rehabilitation specialist noted the worker is involved in weightlifting and advised that a keyboard offers less resistance than weight lifting.
  
• The September 22, 2004 report of the treating surgeon in which the surgeon wrote that "In my opinion basic keyboarding activities should be possible with [the worker] based on his history…"

• The October 5, 2004 report of the WCB Senior Medical Advisor in which the medical advisor reviews the worker's injuries and restrictions and notes that the worker is not a candidate for work that involves frequent/repetitive keyboarding, as per data entry work. The report concludes that "…[the worker] does not appear to have a medical condition for which restrictions on basic keyboard use should be imposed…"

It was suggested that the family physician did not support the worker's involvement in the plan. The panel considered the October 15, 2004 report of the family physician and notes that the physician agreed the worker is capable of basic keyboard use. However, the physician appears to be under the impression that the worker is to perform three hours of keyboarding. The physician comments that "…the suspension of benefits based on inability to do three hours of continuous keyboarding at classes exceeds the suggestion of occasional or basic keyboard use." The evidence on file shows that the worker was not required to do three hours of continuous keyboarding, and the panel finds this opinion does not support the worker's withdrawal from the actual plan.

The panel notes that the worker saw two physicians, one on October 5, 2004 and one on October 7, 2004. The panel notes that one physician records the worker's complaint as "Once he started using the keyboard, [the worker] found that the keying greatly increased the pain in his wrist and hands. Due to the increased discomfort, he has declined to continue with the training program." The panel again notes that the worker did not perform any keyboarding at the training program and is unable to rely on the opinion that appears to be based on this incorrect information.

The panel also notes the significant difference in the physician's findings on range of motion in the worker's wrists even though the examinations were conducted two days apart. The panel is not able to rely on these reports.

Finally, the panel notes that the worker ultimately participated in the plan and was able to successfully complete the training.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 7th day of October, 2011