The Appeal CommissionThe Workers Compensation Act of Manitoba

Background

The worker, a landscaper, injured his left biceps on June 24, 2011 when he lifted a lawn mower into the back of a truck. The worker was diagnosed with a left distal biceps tendon rupture. His claim for compensation was accepted by the WCB and benefits and services were paid to the worker while he underwent physiotherapy treatment. The accident employer advised the WCB that it was unable to accommodate the worker with modified duties.

In a report dated October 11, 2011, the worker’s treating orthopaedic surgeon reported that there continued to be some weakness of both left elbow flexion and forearm supination but that the worker has full painless range of motion. In considering treatment options, the surgeon recommended against surgical repair of the distal biceps tendon due to potential complications.

The surgeon noted that: "[The worker] will continue to improve his strength over the course of months. I expect his elbow flexion to get close to normal strength and endurance and I expect some detectable weakness although likely not functional weakness of supination. I cannot give a time course for his improvements but I know that muscle strengthening such as this takes a long time.”

On November 24, 2011, a WCB medical advisor reviewed the file in order to provide an opinion as to the prognosis for recovery. The medical advisor noted that there is variability in outcomes and that non-operative management is associated with long term loss of strength of elbow flexion and supination and loss of endurance strength. The medical advisor noted references to good functional recovery; however, given the worker’s young age, he suggested soliciting a second opinion from an orthopaedic surgeon.

According to the physiotherapist’s Discharge Assessment, as at November 28, 2011 the worker had full range of motion in his left elbow and shoulder with the ability to lift up to 35 lbs. Satisfactory recovery was noted and no request for extended treatment was made.

The worker was examined by a second orthopaedic surgeon on February 21, 2012. According to the surgeon’s report, the worker reported that he went to physiotherapy and has regained function in his arm and is back to working out but feels that the arm is weaker than he would like. On examination, the surgeon noted as follows:

“On physical exam, [the worker] has a pronounced Popeye deformity of his left biceps tendon that has migrated quite proximally. He has full painless range of motion to flexion, extension, pronation and supination of his left elbow and is neurovascularly intact in his left hand. He has good strength to flexion and extension and supination and pronation of his hand but his supination and flexion is noticeably weaker on the right [sic] side.”

The surgeon was of the opinion that considering the amount of function the worker has at the present time, reconstructive surgery would not be recommended. The surgeon also noted that the worker “is back to working out and lifting weights and most activities, he is happy to continue as he is going and continue with his retraining in engineering.”

The worker’s file was subsequently reviewed on April 19, 2012 by a WCB medical advisor in consultation with a WCB orthopaedic surgery consultant to determine whether there were any restrictions related to the compensable injury. It was their opinion that restrictions were not needed. The memorandum on file states that while there is a difference in strength reported by the worker there was no need for long term restrictions for this injury. It was also noted that the recent report from orthopaedic surgery suggests full range of motion and as no measurable loss of passive range of motion is anticipated, it is unlikely that an impairment award would be appropriate.

According to the file, the worker had advised the WCB case manager in November 2011 that he was returning to school full time to complete a course in civil engineering starting on January 2, 2012. The worker questioned whether he was entitled to financial support towards his schooling and continued wage loss benefits while he was at school and not working, in light of the fact that the loss of strength in his arm prevented him from returning to the same or similar job as a landscaper.

In a letter dated December 8, 2011, the WCB case manager considered whether the worker was entitled to any benefits or services such as wage loss benefits, vocational rehabilitation assistance (retraining) and medical aid expenses. The WCB case manager was of the view that the worker was not entitled to wage loss benefits beyond January 2, 2012 since his loss of earning capacity resulting from the injury will end when he returns to school. With respect to vocational rehabilitation benefits, the case manager advised that the worker would not be considered for retraining as his pre-accident earnings were at minimum wage, and even with his compensable injury, the worker was capable of employment earning minimum wage. The worker was entitled to receive medical aid benefits (coverage for doctor’s visits, mileage, medications, etc.) due to the effects of his compensable injury. The worker appealed this decision to Review Office.

On January 31, 2012, Review Office upheld the decision of the WCB case manager that the worker was not entitled to wage loss benefits after January 2, 2012 or financial assistance for the worker’s school program. In its decision the Review Office noted that the worker’s average earnings prior to the accident were $268.10 per week. The Vocational Rehabilitation Policy (WCB Policy 43.00) is intended to help workers return to the salary level they were earning before the compensable injury, and before considering retraining or re-education, the WCB must consider return to other types of work at a similar salary. Review Office was of the view that the worker would not be entitled to benefits for retraining as a civil engineer. As the file does not indicate any permanent restrictions or long term loss of earning capacity, the worker was not entitled to any wage loss benefits and responsibility should not be accepted for his school program.

On February 9, 2012, the worker appealed Review Office's decisions to the Appeal Commission.

At the hearing held on May 28, 2012 the worker argued that he should be entitled to wage loss benefits notwithstanding that he is back at school on the basis that he is still unable to work in the same type of heavy lifting job he had prior to the accident due to lack of strength in his arm.

The worker’s evidence was that at the present time his arm is about half as strong as it used to be, but that he could lift a 50 lb. lawn mower. He explained that when doing exercises at the gym his endurance and strength was about 50% of what he was able to do prior to the accident. He confirmed that he can lift about 30 to 35 pounds with his left arm and about 60 to 70 pounds using both arms. He indicated that he has no pain in his arm.

The worker also gave evidence that he had been working as a landscaper since April or May 2011 and prior to that he had worked for a courier company, as a telemarketer, and in real estate. He confirmed that even with his injury, he could work in other minimum wage jobs that do not require heavy lifting.

Issue No. 1: Whether or not the worker is entitled to wage loss benefits After January 2, 2012

Applicable Legislation and Policy

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

Subsection 4(2) of the Act provides that “[w]here a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident…but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.”

With respect to the duration of wage loss benefits, subsection 39(2) also provides that “…wage loss benefits are payable until (a) the loss of earning capacity ends, as determined by the board…”

The Act also provides guidance on how loss of earning capacity is assessed. In subsection 40(1) the Act provides that “[t]he loss of earning capacity of a worker is the difference between (a) the worker’s net average earnings before the accident; and (b) the net average amount that the board determines the worker is capable of earning after the accident…”

Based on the above provisions, where it is determined that a worker has recovered from a compensable injury to the point that they are capable of returning to a job at the same pre-accident salary level, there is no longer a loss of earning capacity and the worker is not entitled to further wage loss benefits.

In the case at hand, the medical evidence indicates that the worker has full pain-free range of motion; is capable of lifting 30 to 35 lbs. with his left arm; and, although his left arm is weaker than before, he has good function with that arm and there are no long term restrictions related to the injury. According to the physiotherapy discharge assessment, as at November 28, 2012, the worker was able to lift 35 lbs. and had full pain-free range of motion. When examined by a surgeon on February 21, 2012, the worker confirmed the findings of the physiotherapist that he had regained function and had full painless range of motion. The worker’s evidence at the hearing was that he is capable of lifting a total of 60 to 70 lbs. with full range of motion and no pain. The worker also testified that while he cannot return to his job as a landscaper, he is capable of performing other minimum wage jobs that do not require heavy lifting.

The panel finds that the worker was capable of returning to a job at his pre-accident salary level as early as November 2011. The panel concludes, on a balance of probabilities, that by January 2, 2012 when the worker chose to commence school rather than seek employment, there was no longer a loss of earning capacity that would entitle him to wage loss benefits as the worker had made a personal decision to remove himself from the labour market. We therefore find that the worker is not entitled to wage loss benefits after January 2, 2012.

Issue No. 2: Whether or not the worker is entitled to financial assistance toward his school program

Applicable Legislation and Policy

With respect to academic, vocational and rehabilitative assistance, subsection 27(20) of the Act

provides as follows:

27(20) The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

The WCB Vocational Rehabilitation Policy 43.00 further clarifies the goals and describes the terms and conditions of academic, vocational, and rehabilitative assistance available to a worker under subsection 27(20) of the Act. The Policy notes that “[v]ocational rehabilitation strives to return workers to the salary level they were earning before the injury or illness”.