The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing three decisions made by the Workers Compensation Board ("WCB") in relation to his 1980 compensation claim that deals with his left thumb complaints and the calculation of his wage loss benefits in light of him receiving Canada Pension Plan disability benefits. A hearing was held on October 3, 2011 to consider the matters.

Issue

Whether or not the worker's left thumb complaints are compensable;

Whether or not the worker's Canada Pension Plan disability benefits should be taken into account when calculating his wage loss benefits; and

Whether or not the worker's retroactive entitlement to benefits was correctly calculated.

Decision

That the worker's left thumb complaints are not compensable;

That the worker's Canada Pension Plan disability benefits should be taken into account when calculating his wage loss benefits; and

That the worker's retroactive entitlement to benefits was correctly calculated.

Decision: Unanimous

Background

Issue 1

On July 22, 1980, the worker sustained an injury to his right wrist in a work-related accident. His claim for compensation was accepted by the WCB and various types of benefits and services have been paid to the worker. File records also show that the worker underwent a below elbow amputation of his right arm which was not accepted as a WCB responsibility.

On September 30, 2008, a WCB case manager wrote to the worker with regard to his left hand complaints. The letter stated:

"You have indicated that because of your compensable right hand injury, you overused your left hand, which caused increased pain and discomfort. Medical information has confirmed that your left hand difficulties have been diagnosed as arthritis of the first Carpal Metacarpal ("CMC") joint of the left hand.

After a further review of all the information supplied on file, it is the opinion of Rehabilitation & Compensation Services, that degenerative changes were evident in your left hand, and were not considered to be work related. The loss of your right hand is not considered to be the responsibility of the Workers Compensation Board. Therefore, any difficulties you have experienced due to overuse of your left hand and subsequent medical treatment is not considered compensable."

In a letter dated February 23, 2009, the worker appealed the case manager's decision of September 30, 2008. On March 11, 2009, the worker advised Review Office that he wanted it to reconsider whether his left thumb problems were compensable. The worker felt they should be because his right hand injury caused him to overuse his left hand. The worker noted he was scheduled for further thumb surgery on March 19, 2009.

In a decision dated March 13, 2009, Review Office determined that the worker's left thumb complaints were not compensable. Review Office noted that the worker had degenerative changes of his thumb joint and that the worker had significant degenerative changes in his spine. Review Office noted that the presence of arthritis in more than one area was indicative of a genetic predisposition to its development, as opposed to it being the result of use or overuse. Review Office concluded that, based on a balance of probabilities, there was no relationship between the worker's left thumb complaints and any increase in its use because of his compensable right upper extremity injury.

On March 30, 2009, the plastic surgeon's office provided the WCB with operative reports related to the worker's left thumb complaints.

The worker spoke with Review Office on April 2, 2009 and asked that it reconsider its decision of March 13, 2009. The worker noted that his left thumb had been giving him problems for years before the amputation of his right hand. He felt his thumb problems were related to his previous inability to use his right upper extremity thereby stressing his left one. The worker said his left upper extremity was "getting a break" as post right hand amputation, he had more use of his right upper extremity.

At the request of Review Office, a WCB medical consultant was asked to review the worker's claim and provide his opinion as to whether the worker's left thumb arthritic complaints and subsequent surgeries were in any way related to overuse of his left upper extremity.

In a memorandum to file dated April 17, 2009, the consultant indicated that he was unable to state that overuse was the probable cause for the worker's carpometacarpal arthrosis. He said it was possible that the additional load transmitted to the worker's left upper extremity was an etiological factor in the development of his carpometacarpal arthrosis, but he did not believe that the evidence would speak to the fact that it was probable.

In a decision dated April 27, 2009, Review Office confirmed to the worker that there was no basis to change its previous decision that his left thumb complaints were not compensable. Review Office based its decision on the opinion of the WCB medical consultant outlined on April 17, 2009. Review Office confirmed its position again in a letter to the worker dated March 16, 2011. On March 16, 2011, the worker appealed the decision to the Appeal Commission and an oral hearing was requested.

Issues 2 and 3

The worker advised the WCB that he applied for and was accepted to receive Canada Pension Plan ("CPP") Disability benefits and that his monthly CPP disability rate was retroactive to November 2006.

In a note to file dated December 10, 2008, the case manager recorded that the worker's CPP monthly rate was $628.83 per month and that after review the Special Additional Compensation ("SAC") benefit would be $1269.85 per month as compared to the current SAC of $1567.85, a reduction of $298.00 per month.

On December 12, 2008, the worker was advised that CPP disability benefits are usually considered a collateral benefit. Based on the file information, there was an overpayment from January 1, 2006 to November 30, 2008 in the amount of $10,190.78.

On March 3, 2009, the worker was notified that the WCB received information from CPP and it was confirmed that he was in receipt of disability benefits, in part, as a result of his right hand/wrist injury. Therefore the CPP disability benefit was considered a collateral benefit. The worker was advised that $200.00 per month would be deducted from his monthly SAC benefits until the overpayment was recovered.

On March 24, 2009, the WCB advised the worker that further to the decision of December 12, 2008, the amount of his overpayment had been adjusted to $9,180.76 from $10,190.78.

On March 16, 2011, the worker requested Review Office to reconsider the pre-1992 increases and post-1993 indexing of his average earnings and the deduction of his CPP disability benefits from his wage loss benefits.

On March 31, 2011, Review Office determined that seventy five percent of the worker's CPP disability benefits should be taken into account when calculating his wage loss benefits. Review Office noted that when apportioning CPP disability benefits, the WCB used five classifications. Review Office said the worker meets classification 2 in that the majority of his disability was causally related to his compensable injuries. It followed that 75% of the worker's CPP disability benefits should be taken into account when calculating his wage loss benefits. Review Office requested a recalculation of the worker's wage loss benefits from 2006 to date.

On April 15, 2011, a case manager advised the worker that a recalculation of his benefits using only 75% of his CPP disability benefits had been completed. The worker was advised that his overpayment to the WCB had been fully paid and that his monthly SAC benefits would now be $1462.60. The worker was provided with a copy of the payment specialist's calculations.

On June 20, 2011, Review Office wrote the worker referencing the payment specialist's April 14, 2011 memorandum that detailed his SAC calculations. Review Office concluded that the worker had been correctly paid but noted there was an error in it regarding an incorrect date. "The line reading 'Total SAC paid Jan 1, 06 - Oct 31, 08 = $57128.28' should read 'Total SAC paid Jan 1, 06 - Feb 28, 09 = $57128.28.' I have made the change on the attachment by hand. The same error is in the attachment to the case manager's April 15, 2011 letter to you." On June 24, 2011, the worker appealed Review Office's decision to include his CPP benefit when calculating his wage loss entitlement to the Appeal Commission and a hearing was arranged.

On September 23, 2011, the worker asked the Appeal Commission to consider a third issue, namely, the correctness of the WCB's calculations when they reduced his SAC benefits because of his CPP disability benefits. The worker felt he was owed $313 per month going back five years, which equaled $18,780.

Reasons

Applicable Legislation

In considering appeals, the Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.

The worker is appealing three decisions made by the WCB.

Issue 1: The first issue is whether the worker's left thumb complaints are compensable. Subsection 4(1) of the Act deals with claim acceptance. It provides:

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a workman, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

The key question to be determined by the panel deals with causation and whether the worker's left thumb complaints can be linked to his workplace injury. WCB Policy No. 44.10.80.40, Further Injuries Subsequent to a Compensable Injury, deals with injuries that arise after a compensable injury. It provides that the WCB will accept responsibility for a subsequent injury where the compensable injury significantly contributes to the subsequent injury.

Issues 2 and 3: The second issue is whether the worker's CCP disability benefits should be considered when calculating the worker's wage loss benefits. The third issue is whether the worker's retroactive entitlement to benefits was correctly calculated.

The worker is in receipt of SAC benefits and CPP disability benefits. SAC benefits are paid pursuant to WCB Policy No.44.60.30, SAC Benefits. WCB Policy 44.80.30.10, Wage Loss - Establishing Post Accident Earning Capacity (the "Post Accident Earnings Policy") is also relevant in cases where a worker receives both SAC and CPP benefits.

The Post Accident Earnings Policy describes the methods that will be used to calculate workers' post-accident earning capacity. Paragraphs three and four outline the sources to be included in actual post-accident earnings for workers injured prior to January 1, 1992.

Worker's Position

The worker attended the hearing and explained his position to the panel. He answered questions posed by the panel. The worker referred to the letter that he sent to the Appeal Commission in support of his appeal.

Issue 1: The letter noted that due to the work injury his right hand has been essentially useless for 30 years. He noted that he had to adapt from being right handed to using his left hand and that he experienced symptoms in his left hand even before the amputation of his right hand. The letter identifies the medical evidence that the worker is relying on, specifically:

The worker said that the left hand had to work for two hands. The worker asked the panel to accept the opinion of the occupational health clinic physician who said his thumb injury was due to overuse of the left hand substituting for the right hand.

The worker advised that since the amputation his right arm is more functional and that he has improved the musculature of the arm. He said he can carry groceries with his right arm.

Regarding his current level of activity, the worker said he keeps active. He volunteers at a local hospital where his job is mainly driving and picking up blood supplies for the emergency ward.

Issues 2 and 3: The worker disagrees with the WCB's decision to take a portion of his CPP disability benefits. In his letter he wrote that CPP accepted his claim because of his amputation, which WCB refused to accept, and because of his left hand which is part of his overall disability, and because of his back, headaches, and limited education, none of which have been accepted by WCB.

The worker advised that he applied for CPP benefits before the right arm amputation but his application was denied. He said that CPP accepted his application only after the amputation which is evidence that the CPP decision was based on the amputation. He noted that the WCB did not accept responsibility for the amputation and therefore should not be able to deduct the CPP benefits from his WCB benefits.

The worker advised that he disagreed with the calculation of his retroactive entitlement to benefits. He said that by his calculations he is owed $313 per month going back 5 years, which equals $18,780.

Employer's Position

The employer did not participate in the hearing.

Analysis

Issue 1: Whether the worker's left thumb complaints are compensable?

For the worker's appeal of this issue to be successful, the panel must find a causal relationship between the worker's 1980 workplace injury and the worker's left thumb injury. After considering all of the evidence, the panel is of the opinion that the worker’s left thumb complaints are not related to his 1980 workplace injury.

We note the worker's thumb injury has been diagnosed as arthrosis of the first carpal metacarpal joint. The arguments and information on the file assert that this condition is linked to both overuse factors and genetic factors.

The worker argued that his left thumb injury is a direct consequence of the right arm injury. He said that he had to compensate for the loss of use of his right arm and that this resulted in overuse of his left arm and specifically resulted in the injury to his left thumb. He said that the rehabilitation placements arranged by the WCB caused overuse of his left arm. He referred to the parts delivery job and the gas station job as being the cause of his left arm issues.

The worker asked that we accept the opinion of the occupational health clinic physician. In a report dated April 8, 2009 the physician wrote that it was his opinion the worker's left thumb condition was the result of overuse, primarily from substituting his left hand function for the compensable disability of his right arm impairments, and the vocational placement in manual work better suited for persons with two functional arms.

We note that the work placements referred to by the worker and the physician took place in the early 1990's, long before significant symptoms appeared in the worker's left hand. The work placement was limited to a relatively short period in 1991 and 1992. The panel also reviewed the various job duties performed by the worker for that period and note that while the job duties did lead to epicondylitis issues in the left arm, they did not involve exclusive or significant use of the left thumb. We are not able to find, on a balance of probabilities, that theses placements caused the worker's left thumb condition. We also are unable to find any significant evidence of ongoing overuse, as the worker has not worked since the early 1990's, and in our questioning, do not find evidence of overuse in the worker's daily activities since that time.

The worker's physician submitted medical literature in support of his opinion. We have reviewed these articles and have noted the comments of the WCB medical advisor in a memo dated May 14, 2010. We do not find the articles to be persuasive and note that one article in fact specifically noted that the risk of thumb metacarpal osteoarthritis was not associated with physical work stress, while another article noted that the exact etiology of thumb carpal metacarpal arthritis is unclear.

We give more weight to the opinion of the WCB medical advisor set out in memos dated April 17, 2009, May 14, 2010 and March 7, 2011. The medical advisor stated that the cause of the worker's type of arthrosis is not known and given the specifics of this case, it can only be related to etiologic factors of any variety on a possible but not probable basis.

We find, on a balance of probabilities, that the worker's left thumb complaints are not compensable. We also find that the evidence does not establish, on a balance of probabilities, that the worker's compensable right arm condition significantly contributed to the worker's left thumb complaints.

Issue 2: Whether or not the worker’s CPP disability benefit should be taken into account when calculating his wage loss benefits.

As previously noted the worker is in receipt of SAC benefits and CPP disability benefits. In addressing this appeal, the panel must consider the provisions of the Act and WCB policy and decide whether or not the worker’s CPP disability benefits should have been taken into account when calculating his benefits. In order for the worker’s appeal to be successful, the panel must find that the CPP disability benefits are not "injury related benefits". If the CPP disability benefits are injury related, they must be included by the WCB when determining the worker's post-accident earnings.

The panel found, on a balance of probabilities, that the portion of the CPP disability benefits are considered a collateral benefit and must be deducted.

The inclusion of the CPP disability amount is relevant because of the 75% statutory benefit maximum. As the worker was already receiving compensation at the full maximum benefit level, any amounts received by him as CPP disability benefits for the workplace injury are required to be deducted from his WCB benefits. If these amounts were not deducted, the worker's post-accident earnings would exceed the 75% ceiling imposed by the Act.

The relevant policy is WCB Policy 44.80.30.10, Wage Loss - Establishing Post Accident Earning Capacity (the "Post Accident Earnings Policy").

The Post Accident Earnings Policy describes the methods that will be used to calculate workers' post-accident earning capacity. Paragraphs 3 and 4 outline the sources to be included in actual post-accident earnings for workers injured prior to January 1, 1992.

In the panel's opinion, the Post Accident Earnings Policy clearly states that "injury related benefits" must be included as a source of earnings for workers with accidents occurring prior to January 1, 1992. There is provision in paragraph 4 for some income sources to be automatically excluded; however, CPP disability benefits do not fall under any of the listed exclusions.

In granting the worker a CPP disability benefit, CPP provided a rationale that noted:

• worker had at least 8 surgical procedures in the right hand and wrist
• developed left epicondylitis as a result of overuse of left dominant arm
• in 1995 he had an arthrodesis to provide more stability to the right wrist and in 1996 had a revision and attempt to remove a pin
• in 1997 the orthopod confirmed worker had severe contractures of all joints of the fingers with very few functional capabilities making him basically a one-handed person
• in 1997 he requested amputation of right hand and in 2005 received an amputation
• worker was incapable of performing heavy physical activities
• his employment opportunities were very limited as he was functioning at low intellectual level
• the WCB considered him to be unemployable

The CPP rationale concludes that based upon medical and non-medical matters, the worker is considered disabled as per CPP legislation.

In our opinion, the rationale clearly provides that the CPP disability benefits are provided primarily for the loss of use of the worker's right hand and its impact on his employability. The WCB concluded that 75% of the benefit was due to the workplace injury and 25% was due to non-compensable matters, accordingly it deducted 75% of the CPP disability benefit from the WCB benefit. At the hearing, the worker also acknowledged that it was his right hand arm disability that was the primary reason for his inability to work. We agree that 75% of the worker's disability for which CPP is paid is due to the workplace injury, and that there is no basis on which to reduce that percentage by giving greater weight to the other non-work-related medical and non medical issues.

The worker argued that the WCB did not accept responsibility for the amputation, and that the CPP disability benefits are due to the amputation. As noted above, we view the CPP amount as being paid, primarily, because of the workplace injury.

We are bound by WCB policy and find that CPP disability benefits must be taken into account when calculating the worker's SAC benefit entitlement.

The appeal on this issue is dismissed.

Issue 3: Whether the worker's retroactive entitlement to benefits was correctly calculated?

The worker argued that the WCB made a mistake in its calculations and that he is entitled to additional benefits. He said that he believes he is owed $313 per month going back five years for a total amount of $18,780.00.

The worker's evidence when responding to questions from the panel on the matter was that he had been receiving a monthly cheque of $1,149.00. After the decision from the Review Office he began getting a cheque for $1,462.00 so he subtracted the prior SAC amount from the current SAC amount and it was $313.00. Therefore he feels that amount is the difference he should have received in back pay for every month of the five year period he had received both WCB and CPP benefits.

For the worker's appeal of this issue to be successful, the panel must find that an error was made in the recalculation of his SAC benefits after the Review Office decided that 75% of his CPP disability benefit should be deducted from the worker's SAC benefits. The panel was not able to make that finding.

In reviewing this matter, the evidence on the file notes that prior to 1991 the WCB had regularly contacted the former employer and adjusted the worker's wages to the maximum allowed under the Act.

The Act was amended effective January 1, 1992 to provide that instead of contacting employers for wage increase information, benefits were subject to statutory indexing. The panel has found that the worker's benefits were properly indexed.

We note that effective October 1, 2000 the worker's benefits were replaced by SAC of $1,318.39 per month. We further note that this benefit had also been indexed every two years and that as of October 2008 the worker's SAC benefit was $1,567.85 per month.

We also note that initially the WCB had determined that 100% of the CPP disability benefit should be deducted from the worker's SAC benefits and as of March 1, 2009 the worker's SAC was decreased to $1,288.99 per month. The WCB calculated an overpayment the worker had received for the period of January 1, 2006 to February 28, 2009 and reduced the SAC by a further $200.00 per month to repay the overpayment. This resulted in the worker receiving $1,088.99 per month.

Following the March 31, 2011 Review Office decision that only 75% of the worker's CPP disability benefit should be taken into account when calculating wage loss benefits, a payment assessor recalculated the former entitlements over the five year period. The results of the calculations showed that the worker had paid back almost all of the overpayment and that the worker should receive an adjustment cheque for the difference between deducting 100% instead of 75% of his CPP disability benefit. It was further established that as of April 15, 2011 the worker was entitled to a SAC benefit of $1,462.60.

The panel has reviewed those calculations and finds that the SAC benefit of $1,462.60 per month as of April 15, 2011 is a correct calculation.

The evidence on the file confirms that the SAC benefit of $1,149.60 the worker was receiving prior to the Review Office decision also included a reduction of $200.00 to repay the overpayment and the deduction of the full 100% CPP disability benefit.

Based on this analysis, it appears that the sum of $313.00 per month requested by the worker is based on the $200.00 repayment deduction for the prior overpayment and the exclusion of the 25% of CPP which was initially included.

The panel notes that after the recalculations it was determined that between January 1, 2006 and March 31, 2011 the worker received $90,615.07 but should have received $88,283.28. This resulted in an overpayment of $2,331.79.

As the WCB had already recovered $4,400.00 of the overpayment, the worker was not required to repay the $2,331.79 and was then paid a one-time adjustment of $2,816.51 ($4,400.00 - $2,331.79 = $2,816.51).

The panel finds that no error was made in the re-calculations of his SAC benefits by taking into account only 75% of his CPP disability benefit to be deducted from the worker's SAC benefits, nor as in any of the other calculations noted above.

The worker's appeal on this issue 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 25th day of October, 2011