The Appeal CommissionThe Workers Compensation Act of Manitoba

Applicable Legislation

The Appeal Commission and its panels are 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.

Worker’s Position

The worker attended the hearing accompanied by his father. It was submitted that the time off work which the worker received after the accident was not an adequate amount of time for him to deal with the trauma of losing a finger and the nightmares and fear that resulted from the accident. The worker was very young and just starting his life when the accident occurred. He was also an accomplished musician who was no longer able to play the violin as a result of his injury.

The worker noted that he was clinically diagnosed with post traumatic stress disorder after the incident and he suffered from nightmares. He submitted that for the past four years, he still suffered from the same fears and from self-consciousness about the appearance of his hand. He had a very difficult time attempting to return to work and that since the accident, he worked at odd jobs. The worker found that he had become more withdrawn after the accident and he found it difficult to hold a job. Overall, the worker did not feel that he received adequate compensation from the WCB for his workplace injury.

More recently, after receipt of the psychological assessment dated October 13, 2011, the worker submitted that the assessment listed the mental problems he was currently suffering and explained that they had been ongoing since the June 2007 workplace accident. The problems had been getting worse rather than better. The worker repeated that losing his finger was an extremely traumatic event for him. It changed the way he looked at the world and he was not the same person as he was before the accident. He submitted that the psychological findings that he was not currently capable or mentally fit to work, almost five years after the accident, could only mean that he was unfit to return to work eight or nine months after the accident.

Employer’s Position

The employer was represented by an advocate at the hearing. The advocate acknowledged that it was an awful accident and said that the employer felt terrible about what had happened to the worker. Under the Act, however, if there is no loss in earning capacity, then a worker is not entitled to wage loss benefits. It was submitted that the medical evidence available on file showed that the worker had recovered and was able to resume his pre-accident work by February 8, 2008. The employer's position was that if the panel determined that there was evidence to show ongoing disability, the employer would support the provision of further benefits to the worker.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond February 8, 2008. In order for the worker’s appeal to be successful, the panel must find that after February 8, 2008, the worker continued to suffer from ongoing effects of the incident such that his earning capacity was impaired. On a balance of probabilities, we are not able to make that finding.

In the panel's opinion, the evidence does not support a finding that the compensable injury affected the worker's ability to earn income after February 8, 2008. In coming to this decision, the panel relied on the following:

• The medical reports indicate that by August 1, 2007, the worker's wound was well healed. At the hearing, the worker admitted that the amputation had healed well and there were no real problems. He did note experiencing phantom limb pains but did not describe any significant disability associated with these pains.
• While the loss of his left fifth finger may have somewhat reduced his grip strength and made some tasks awkward to perform (for example, scooping change off a counter and into the other hand), the panel finds that the worker was generally not prevented from carrying out ordinary tasks, particularly given that he is right hand dominant.
• The only psychological condition which was directly associated with the workplace accident was PTSD. In his report of January 16, 2008, the treating clinical psychologist opined that there was no residual of PTSD symptomatology at that time.
• At the hearing, the worker described his employment history in the period after the WCB ended his wage loss benefits. His first job after the accident was a full time position at a car dealership doing oil and fluid checks. He worked there for approximately two months. In September, 2008, the worker started attending college on a full time basis to study technical drafting. It was a two year program and the courses ran from September to June. The worker completed the academic program in June 2010 achieving grade levels in the high 60's to low 80's. During the school year and on summer breaks, the worker held various jobs as a retail sales clerk, construction site cleaner, and in the fast food industry. Since finishing college, the worker obtained employment in retail sales as a stocker, and in food services.
• When asked about why he left his various jobs, the worker described not bonding with others at the car dealership, having conflict with a customer at a retail position and being laid off from other jobs.
• It would appear that since February 8, 2008, the worker has demonstrated the ability to complete college, obtain various employment positions, and to function at work on a full time basis. In the panel's opinion, this would suggest that the worker had recovered sufficiently from the PTSD that his earning capacity was no longer impaired. There is no doubt that the loss of his small finger affected him deeply, but the injury did not stop the worker from going on with his life.
• At the hearing, the worker described ongoing problems with socialization and the inability to retain employment. Following the hearing, the worker provided the panel with a copy of a psychological assessment dated October 13, 2011. The assessment was prepared for a social services agency outside of Manitoba. In the report, the chartered psychologist concluded: "In my opinion, [the worker] has a substantial mental impairment and is substantively functionally disabled in view of the diagnoses of major depressive disorder, avoidant personality disorder, cannabis dependence, and the issues of anger, lack of social awareness and skill, and unresolved substance abuse." The report specifically declined to comment on whether the worker had PTSD, stating: "Whether he has posttraumatic stress, as he indicates he has had, is not clear, as the present examination did not assess for this condition."
• In the absence of medical evidence supporting that the worker continues to suffer from PTSD, the panel is unable to conclude that accident- related PTSD has caused him to suffer a loss of earning capacity since February 8, 2008.
• The chartered psychologist's overall conclusion was: "In my opinion, as a result of substantial mental impairment, [the worker] is not capable of normal functional ability in normal social activities or vocational activities."
• The panel notes that there is significant overlap between the psychological conditions identified by the chartered psychologist as causing the worker's current substantial mental impairment and the premorbid history outlined in the August 22, 2007 psychological report. This further supports the finding that the worker's current impairment cannot be attributed to the workplace accident.