The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") with respect to the calculation of her average earnings and the denial of additional physiotherapy treatment. A review was held on May 7, 2013 to consider the matters.

Issue

Whether or not the worker's average earnings have been correctly calculated; and

Whether or not the worker is entitled to further physiotherapy treatment.

Decision

That the worker's average earnings have been correctly calculated; and

That the worker is not entitled to further physiotherapy treatment.

Decision: Unanimous

Background

The worker filed a claim with the WCB for a right foot/ankle injury that occurred at work on July 30, 2012. The claim for compensation was accepted by the WCB based on the diagnosis of a second degree inversion sprain of the ankle.

On August 7, 2012, the worker was seen by a physiotherapist for an initial assessment who recommended 8 weeks of physiotherapy treatments for the right ankle. On August 8, 2012, the WCB authorized the physiotherapy treatments which included the initial assessment and up to 14 visits. On August 15, 2012, the WCB also approved the costs of a foam roll to assist in an at-home rehabilitation regimen and an active ankle brace to assist the worker in the return-to-work process.

By letter dated August 30, 2012, the WCB explained to the worker how her WCB benefits had been calculated. The payment assessor indicated that the worker's weekly gross earnings on the average of the last 12 months prior to the date of accident were $1,169.36. These earnings represented all gross income earned throughout the year which included any extra shifts. After probable income tax rebates were taken into account, the worker's weekly benefit entitlement was $733.30. The hourly rate of her weekly benefit entitlement was $14.178 per hour. With respect to time loss benefits, the worker was advised that for the period July 31 to August 6, 2012, benefits had been issued for a total of 72 hours; 24 hours were paid to her employer for July 31 and August 1, 2012 and the remaining 48 hours, including over time hours, were paid directly to her. Therefore for August 2 to August 6, 2012, the worker was paid for 48 hours at $14.178 per hour. As of August 7, 2012, benefits were paid based on the weekly benefit rate of $733.30 per week.

On October 30, 2012, the treating physiotherapist requested authorization for an additional six weeks of physiotherapy treatments as the worker's ankle had limited range of motion and decreased dorsal/external rotation of the cuboid. In a further report dated November 8, 2012, the treating physiotherapist noted that the worker's work demands were impeding her rehabilitation.

A WCB physiotherapy consultant reviewed the claim on November 9, 2012 and stated that there was no evidence that further in-clinic treatment was warranted. The consultant indicated that it was now three months plus post ankle sprain. He said the reported findings did not substantiate a need for further treatment and a treatment plan was not provided. He felt an adequate amount of treatment had been funded by the WCB for the type of ankle injury sustained by the worker. On November 9, 2012, the treating physiotherapist was advised that the WCB was unable to authorize an extension of physiotherapy treatments for the worker's ankle.

On November 14, 2012, the worker wrote Review Office as she disagreed with the calculations used by the WCB to calculate her average earnings, particularly with respect to "on call and call back pay." The worker also advanced the position that she needed additional physiotherapy treatments as she had tenderness and pain in her right foot especially with inverting.

On January 10, 2013, Review Office determined that the worker was not entitled to further wage loss compensation. Review Office found no errors in the calculation used by the WCB to set the worker's benefit rate. It found that the payment assessor correctly calculated wage loss benefits for the worker from July 31 to August 6, 2012. Review Office noted that the worker expressed concerns with lost "on call and call back pay" and that this had been considered by the WCB when setting the wage loss benefit rates.

Review Office also determined that the worker was not entitled to additional physiotherapy treatment. Review Office accepted the opinion expressed by the WCB physiotherapy consultant outlined on November 9, 2012. Review Office indicated that it placed significant weight on the worker only attending six physiotherapy treatments over the two months prior to the request for additional treatment. It found that the lack of attendance combined with the worker being able to perform her regular duties for two and a half months and the time elapsed from the time of injury would negate the requirement for additional treatment. On February 7, 2013, the worker appealed Review Office's decisions to the Appeal Commission and a file review was arranged.

Prior to the Appeal Commission file review, submissions were placed on file from the employer's representative and the worker's treating physiotherapist.

On March 14, 2013, the employer's representative agreed with the WCB's decision that the worker's average earnings had been correctly calculated in accordance with WCB policy. It was also the employer's position that the time period of physiotherapy treatment authorized by the WCB was fair and reasonable in light of the injury sustained.

In a submission dated April 9, 2013, the treating physiotherapist outlined the following factors to support his position that the worker's recovery from her ankle injury was impeded and that she required further physiotherapy treatments:

"Due to my hours in clinic and the days available to [the worker] to seek physiotherapy, we could not have a regular schedule of appointments. My hours were limited to Tuesdays and Thursdays - and [the worker] had an inconsistent shift-work schedule.

On August 9, 2013, I prescribed a supportive ankle brace for [the worker] to wear while on her return to work program. Unfortunately she was unable to wear it because of the limitation of her imposed work footwear…Not being able to wear a brace at work impeded her recovery from the injury.

[The worker] would also have significantly long work shifts that we were unable to maintain a graduated return to work. I have documented workdays as long as 16 hours - without being able to exit the vehicle or break at work to stretch or do her prescribed exercises. This too inhibited timely recovery."

Reasons

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.

The worker's claim for a workplace injury has been accepted. However the worker disagrees with the calculation of her average earnings and also disagrees with the WCB's refusal to authorize additional physiotherapy treatments.

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…” The WCB Board of Directors established Policy 44.80.10.10, Average Earnings, which is designed to determine a worker's average earnings at the time of a workplace injury. The policy provides that "The formula that best represents the worker's loss of earnings will be chosen."

Subsection 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. The WCB Board of Directors established Policy 44.120.10 which deals with the provision of medical aid to workers.

Worker's Position

The worker appealed two decisions made on her claim. She noted on her appeal form that "Calculations based on the previous year not taking into consideration what was actually missed during the time off. I can have very differing pay cheques week to week and that the time off was very costly to myself. As well as missed wages at double for overtime shifts missed.

With respect to further physiotherapy treatment the worker submitted that:

"That need for additional physio was requested by the Physiotherapist.

· Still having pain to date, especially with long hours at work and being on feet all day.

· The statement of only attending 6 treatments over the course of 2 months, this did not take into account my shift work and physio availability.

· The brace that I did receive is very limiting at work and that there wasn't anything else offered that could accommodate my work boots , leading to more pain on longer days at work."

Employer's Position

The employer was represented by an advocate who provided a written submission on behalf of the employer. The representative advised that the employer agrees with the decisions made by the WCB case manager and Review Office.

Regarding the calculation of the benefits, the representative noted that the worker's earnings were based upon her pre-accident 12 month earnings. He said that the employer considers this to be both fair and correct. He noted that "While the claimant has apparently expressed concern with a potential loss of "on call" payments, this is logically taken into consideration by the WCB looking at her previous 12 months of average pay."

The representative advised that the employer agrees with the WCB Physiotherapy Consultant opinion that "there is no evidence that further in clinic treatment is warranted."

Analysis

Issue 1: Whether the worker's average earnings have been correctly calculated.

For the worker's appeal of this decision to be successful, the panel must find that the WCB has made an error in calculating the worker's average earnings. The panel was not able to make this finding. The panel finds that the worker's average earnings have been calculated correctly in accordance with WCB Policy.

The WCB Board of Directors established WCB Policy 44.80.10.10, Average Earnings, which is designed to determine a worker's average earnings at the time of a workplace injury. Under this policy the WCB is to use the formula that best reflects the worker's actual loss of earnings. In this case, the WCB considered the worker's regular earnings, last calendar year earnings, and previous 12 months earnings. It used the worker's previous 12 months earnings as this was the highest amount.

The panel finds that it was appropriate to use the past 12 months earnings. This calculation included the worker's overtime and on call earnings during this period. It also takes into account the worker's fluctuating work week and, consistent with the policy, is a reasonable predictor of the worker's future earnings. The panel notes this formula resulted in 51 hours worked per week on average.

The panel also reviewed the calculations and found them to be arithmetically correct.

The worker's appeal of this issue is denied.

Issue 2: Whether the worker is entitled to further physiotherapy

For the worker's appeal of this issue to be successful, the panel must find that the worker required additional physiotherapy treatments as a result of her injury. The panel was not able to make this finding.

In reaching this decision, the panel relies upon the November 9, 2012 opinion of the WCB Physiotherapy Consultant. The consultant opined that "There is no evidence that further in clinic treatment is warranted. A home program and/or self pain management techniques should suffice." The consultant noted that it was 3 months post ankle sprain and that the findings do not substantiate a need for further treatment. The panel accepts the consultant's comments that a home treatment plan should be sufficient.

The panel also notes that the October 22, 2012 , October 30, 2012 and November 8, 2012 reports from her physiotherapist, the worker indicated she had a 1/10 rating on the numeric pain rating scale. As well, her rating on the lower extremity activity profile was 75 to 76/80. These findings do not support the need for further physiotherapy.

Finally, the panel notes that the worker has been working her regular duties as a paramedic for several months. There is no indication that the worker is not recovering and unable to perform her duties as a result of her ankle injury.

The worker's appeal of 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 29th day of May, 2013