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 represented by legal counsel at the hearing. The worker's position was that she ought to be entitled to compensation benefits for the restricted period from her last day of employment on April 28, 2011 until May 23, 2012, which was the date on which the worker was cleared by her surgeon to return to work, but at which point she voluntarily chose not to return to work. The worker was not making a claim for continued WCB wage loss benefits beyond that date.

The worker suffered from CTS and the causes of this condition were repetitive movements of the hand or wrist, which she did in the course of her job duties. The WCB had accepted the worker's claims for wage loss resulting from this condition both in 2003 and later at another instance in 2007/2008. It was submitted that the worker's CTS continued to worsen to the point in April 2011 when she was not longer able to work or function in the job she had been working at since 1994. The accident employer told her that there was nothing else for her to do at the company and so therefore she had no choice but to leave work. This was not a personal choice. It was only after the worker had surgery on her right wrist in 2012 and was cleared by her surgeon on May 23, 2012 for return to work that the worker made the conscious decision to discontinue working. The worker acknowledged that she was not entitled to wage loss benefits from this point in time onwards.

Analysis

The issue before the panel is whether or not the worker has a compensable loss of earning capacity effective April 28, 2011 and/or February 1, 2012. In order for the worker’s appeal to be successful, the panel must find that at the relevant time, the worker's earning capacity continued to be impaired by the effects of her workplace injuries. We are not able to make that finding.

The main issue for the panel is to determine the reason why the worker left the workforce on April 28, 2011. Did she leave because she was disabled by the effects of her CTS or did she leave as a result of a personal lifestyle decision? It is always difficult to make these types of determinations, but on a balance of probabilities, the panel feels that the evidence weighs more heavily in favour of the finding that the worker's decision to leave was a personal lifestyle decision. In reaching this conclusion, the panel relied on the following:

• The worker first advised the WCB of her intention to leave her employment in an email dated February 9, 2011. In the email, she indicated that she felt that the only way to relieve her pain was to stop the typing and mousing which her job required her to do. At that time, she had already given notice at her workplace that her last day of employment would be at the end of April 2011.
• One month prior to this email, on January 6, 2011, the worker had advised her WCB case manager that she was still having symptoms in her right hand but she continued to work her regular duties and was managing.
• The worker's evidence at the hearing was that she and her husband had owned a second home at the lake since the early 1980s and it had always been their intention to sell their larger house in Winnipeg and eventually move to their house at the lake. They had fixed up the lake house over the years and in the year prior, they had put in a new kitchen.
• The house in Winnipeg was sold with a possession date of March 1, 2011. They had put the house on the market in January. Based on this information, the panel finds that the worker's intention to move to the lake was formed by at least January 2011.
• The medical reports from late 2010 and early 2011 indicate continuing CTS symptomatology but do not indicate total disability at that time. There is no medical report indicating total disability until September 2011.
• The evidence did not disclose a pattern of repeated time missed from work or under-performance by the worker in her employment position, thus suggesting to the panel that the CTS was not preventing the worker from doing her job.
• On the contrary, the worker's evidence was that her employer had been very accommodating and the worker was given significant latitude to self-modify her work. If there were large amounts of keyboarding required, the worker was able to pass off that work to another staff person. The worker was in customer service and her main work was "troubleshooting" and taking customer calls. She would use a computer to look up information to answer questions. There was some handwriting in a log book required. The worker was provided with a headset and an ergonomic work station. The panel does not find that the worker's CTS symptoms would have prevented her from performing her job duties, particularly given the WCB medical advisor's advice that the only recommended restriction for carpal tunnel is avoidance of prolonged or repetitive forceful grasp. The job duties being performed by the worker did not involve these actions to any significant degree.
• Although the worker's legal counsel submitted articles regarding carpal tunnel syndrome which suggested a link between the condition and keyboarding/mousing, the panel understands that current medical literature no longer supports an association between typing, mouse work or writing and carpal tunnel syndrome.
• Overall, the panel does not accept that the worker's CTS symptoms would prevent her from continuing to work at her job duties beyond April 28, 2011.
• The worker's evidence was that it had always been her intention to work until age sixty. At the time she left her employment, she was fifty-six. While this was earlier than her stated intention, the panel does feel that the worker was in the age bracket where retirement is a real option.
• The worker's husband was present at the hearing as an observer. He advised the panel that he had been retired since 2005 and was working part time in early 2011. He did not continue to work part time after they moved to the lake. The panel feels that a decision by the worker to retire at the end of April 2011 would be consistent with her husband's lifestyle choices. While the panel acknowledges that this is not determinative, it is certainly relevant in considering the overall context.
• The fact that the worker chose not to return to work in May 2012 after recovering from her right wrist surgery also supports a predilection for this lifestyle choice and a desire to retire earlier than age 60.
• Correspondence on the WCB file indicates that the WCB case manager clearly advised the worker prior to her resignation that the WCB was not supporting her in her resignation from her job and would consider any such decision to be a personal choice.

In view of the foregoing, the panel finds on a balance of probabilities that the worker's decision to end her employment on April 28, 2011 was a personal decision and accordingly, her loss of earning capacity resulting from this decision is not compensable. Similarly, when the worker became disabled from working due to the right wrist surgery performed on February 1, 2012, she was, by choice, no longer working and therefore did not suffer any loss of earning capacity during the time of the surgery and corresponding recovery period. There was no compensable loss of earning capacity effective either April 28, 2011 or February 1, 2012. The worker's appeal is therefore dismissed.