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(1) of the Act, where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker by the WCB.

Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” 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, or the worker attains the age of 65 years.

Worker's Position

The worker was accompanied by his father at the hearing. It was submitted that after he suffered the injury on May 24, 2011, the worker attended a clinic and was diagnosed with a scaphoid fracture of the right wrist. Due to the seriousness of this injury, the physician recommended that the worker be limited to light duties: no lifting, no pushing, no pulling. That night, the worker was in severe pain so on May 25, 2011, he re-attended the clinic and was advised by the physician to remain off work until May 31, 2011. On May 31, the physician advised the worker to stay off until June 13, 2011. This was subsequently extended to July 13, 2011. It was submitted that according to the physician, the worker was to remain off work because it was a serious injury and the chances of the worker slipping and falling or otherwise landing on his wrist could cause him further complications and result in the injury taking longer to heal. The worker was told by his doctor to stay home and rest his wrist.

The worker submitted that he called his employer on June 14 and took steps to provide his doctor's last note to the employer by faxing it on June 15, 2011. In the meantime, however, the employer had terminated the worker by leaving a letter dated June 14 in his mailbox, which was not discovered by the worker until two days later on June 16.

With respect to light duties, the worker acknowledged the employer made an offer to him, but stated that he was asked to take a flagman course on the weekend on his own time without any compensatory benefits.

Overall, it was submitted that the worker's physician told him to stay off work until July 13, 2011 until his wrist completely healed. In fact, the worker's wrist was feeling better and he went back to his physician five days early and was cleared to go back to work on July 7, 2011.

Employer’s Position

An advocate appeared on behalf of the employer at the hearing. It was submitted that there should be no additional wage loss benefit entitlement beyond June 10, 2011. The accident and injury were not in dispute. The only issues were whether or not the worker was fit to perform modified duties and whether suitable modified duties were available to him. It was submitted that the medical evidence indicated that the worker was fit for modified duties as of at least June 12, 2011, if not earlier, on May 25, 2011. The employer did offer modified duties on May 25 by advising the worker he would be utilized to assist other employees and would be doing things such as assisting surveyors, acting as a flagman or doing security work. All of these duties were within the restrictions initially noted by the first physician. With respect to taking the flagman course, the employer's practice was that it always paid workers for taking these classes, and the course constituted an offer of modified duties. There may have been a misunderstanding on the part of the worker, but taking the course was part and parcel of the offer of modified duties based on the initial restrictions.

The employer questioned the WCB's decision to extend payment of wage loss benefits from May 25 to June 10, 2011, but noted that in any event, the WCB medical advisor did clearly state that the worker would have been fit for the available modified duties as of at least a couple of weeks post-accident. Although the worker's physician authorized longer time loss, there was little in the way of objective clinical findings and not enough medical evidence to warrant total disability.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits beyond June 10, 2011. In order to determine the appeal, the panel must consider whether or not the worker suffered a loss of earning capacity beyond that date. On a balance of probabilities, the panel finds that the worker did not have a loss of earning capacity after June 10, 2011 and therefore he is not entitled to further wage loss benefits.

There was no dispute regarding the types of duties offered through the return to work program offered by the accident employer to its employees. There were several job positions available which did not require use of the right arm. They included acting as a flag person, site security, assisting the surveyor by holding a rod, and helping with onsite paperwork. The worker's evidence was that he believed he would not be paid to take the flagman course, but the employer indicated that their practice was to pay its employees for taking such courses. We accept the employer's evidence and note that in any event, even if the worker was not paid to take the course, there were alternate duties other than flagman which were offered. The panel accepts that these duties could reasonably be performed using only the left arm and we therefore find that one-handed modified duties were available.

The question then becomes whether or not the worker could have performed left handed duties after June 10, 2011. A WCB medical advisor reviewed the file and was of the opinion that 2-3 weeks of rest away from the workplace would be adequate time off for a crush injury to the wrist and after that, it would be reasonable for the worker to perform left-handed duties at work.

The attending physician saw the worker on June 13, 2011 and provided the worker with an absenteeism certificate authorizing time loss from June 13, 2011 to July 13, 2011. The certificate does not provide any particulars regarding the reasons for the time loss. The Doctor's Progress Report completed by the physician on the same date describes minimal clinical findings and states only: "Tender snuffbox." The worker's evidence at the hearing was that as of that date, he was experiencing less pain at that point, and was no longer taking prescription pain killers. His injury was getting better, but he was not yet healed. His discussion with his physician was that he should remain off work to let the injury heal completely so that he would not be at risk of falling on his wrist and making his injury much worse. The worker noted that although his physician told him to stay off work until July 13, 2011, he actually went back to the physician 5 days earlier on July 7, 2011 and got his cast removed and was cleared to return to work sooner than was expected.

In the panel's opinion, by June 13, 2011, the worker's compensable crush injury had healed sufficiently that he could reasonably return to the workplace and perform the one-handed modified duties which were available with the employer. Although his physician's absenteeism certificate authorized time loss to July 13, 2011, his report does not contain clinical findings which would support a finding that the worker was totally disabled from working. The worker's own evidence was that the pain in his wrist had improved and he no longer had to take any prescription pain killers. It would appear that the authorization to remain off work was preventive in nature, as the worker stated that his physician did not want him to return "in case he fell and made things worse." While avoiding any chance of further injury may have been important to the worker (particularly in the context of his desire to return to playing semi-professional hockey in August), the Act only compensates actual loss of earning capacity. On the facts of this case, we are simply unable to find that the worker was totally disabled after June 10, 2011. Suitable modified work within his restriction of left-handed duties was available, but we find that the worker made a choice that he would not accept this work. That was a choice he was entitled to make for himself, but unfortunately, as he did still possess the capacity to earn income, he is not entitled to wage loss benefits from the WCB.