The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits for the period May 29, 2012 to March 24, 2013 as he was fit to perform the work duties provided to him by his employer. A hearing was held on December 4, 2013 to consider the matter.

Issue

Whether or not the worker is entitled to wage loss benefits from May 29, 2012 to March 24, 2013.

Decision

That the worker is not entitled to wage loss benefits from May 29, 2012 to March 24, 2013.

Decision: Unanimous

Background

The worker sustained a laceration to the extensor tendon of his left index finger on November 10, 2011 during the course of his employment as a maintenance worker. Between November 2011 and January 2012, the worker returned to work at reduced hours. On February 10, 2012, it was determined by the WCB that the worker was capable of working full time and that he was not entitled to partial wage loss benefits beyond February 2, 2012.

On February 15, 2012, the worker advised his case manager that he was working full time hours and was not attending physiotherapy as he was doing better.

On June 26, 2012, the worker reported that he was off work again and that his hand and shoulder were bothering him. He felt there was something plastic in his finger. The case manager advised the worker that before wage loss benefits would be paid, the WCB required medical information.

In a letter dated July 12, 2012, the family physician referred the worker to a specialist regarding his left index finger.

On August 3, 2012, the worker was seen at a hospital emergency facility and the diagnosis was triggering of the right second finger.

An x-ray of the left hand dated August 3, 2012 showed no significant abnormalities and no "hardware" was identified. There was no sequela related to the recent previous trauma according to the radiological report.

On August 8, 2012, the worker told his case manager that he was doing lighter work from about January to April and was able to the job. They started to get busy at work in May and he noticed pain in his finger and the palm and top of his hand that went into his forearm. The worker said he could only bend his finger a bit. On June 1, 2012, he stopped working and told his employer that he could not handle the job. He was not offered any light duties.

File records showed that the worker did not attend a medical appointment scheduled for August 30, 2012. On September 28, 2012, the case manager determined that the WCB was not responsible for any time loss from work or medical treatment as the WCB was unable to determine the worker's work status given that he missed his medical appointment. The case manager also noted that the August 3, 2012 medical report was regarding the worker's right index finger and that his workplace injury was to his left index finger.

In a doctor progress report of January 31, 2013, the physician reported that the worker had left index finger pain and tenderness/stiffness over the PIP joint and poor range of motion.

On February 14, 2013, a WCB medical advisor stated that the current diagnosis was likely "residua (sic) post extensor tendon tear/repair 2^nd left finger" based on the limited medical information on file. It was also stated that the current diagnosis was probably related to the compensable injury from November 2011 within a reasonable degree of medical certainty. Based on this opinion, the worker's wage loss benefits were reinstated on March 25, 2013.

On March 7, 2013, the worker was seen by a specialist regarding his left index finger. The specialist noted that the worker developed a mass on the extensor mechanism, likely a stitch granuloma that was causing significant pain and inflammation. Surgery was discussed and was later performed on March 25, 2013.

On April 12, 2013, a WCB medical advisor stated:

…its seems likely that even allowing for the ci (compensable injury) related condition [the worker] would have been fit to continue to perform his duties as a maintenance worker through 2012 until the time of his March 2013 surgery. The work duties were varied and overall light in nature, such that the subsequently reported stiffness and possible limitations in joint ROM (range of motion) would not likely have precluded him from performing his job duties.

In a decision dated April 23, 2013, the case manager determined that the worker was not entitled to WCB wage loss benefits as he was considered capable of working from May 2012 up until his surgery date of March 25, 2013. The case manager noted that she obtained information from the accident employer that the worker was terminated from employment as of May 29, 2013 due to non-compensable reasons. Based on this information and the medical reports on file, it was felt that the worker was capable of working if he had not been terminated from employment. On June 25, 2013, the worker appealed the decision to Review Office.

On August 30, 2013, Review Office upheld that the worker was not entitled to wage loss benefits from May 29, 2012 to March 24, 2013. Review Office noted that the worker submitted that he quit his employment due to pain in his left index finger and the employer's inability to provide suitable work duties. Review Office pointed out that the worker did not seek medical attention or contact the WCB to discuss any difficulties. In Review Office's opinion, the evidence was more suggestive that the worker ceased work at the end of May 2012 due to non-compensable reasons.

Review Office further noted that the medical reports from August 2012 did not support total disability. Review Office accepted the opinion of the WCB healthcare consultant dated April 12, 2013. It found no medical findings to support the position that the worker could not perform the work duties available with the employer. On September 5, 2013, the worker appealed the decision to the Appeal Commission and a hearing was arranged.

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.

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.

The worker has an accepted claim. He is seeking wage loss benefits from May 29, 2012 to March 24, 2013.

Worker's Position

The worker was self-represented. He explained his reasons for appealing and answered questions from the panel.

The worker said that his employer told him in early 2012 that he should stop dealing with the WCB. He said that he was worried he would be removed from his job so continued to work. He said that he lied to the WCB about doing light work when he was doing heavy work renovating hotel rooms.

The worker also explained that he was a friend of the manager. The worker said the relationship was complicated because he was buying a vehicle from the manager. He said a large portion of his salary was applied towards the purchase of the vehicle and that he had to work to pay for the vehicle. Ultimately the vehicle was damaged and issues arose regarding the vehicle.

With respect to his initial return to work the worker said:

"My hand is still in bandage and they are already give me duties that is not like supposed to be. They give me -- okay, I said, my hand is not yet ready to work."

The worker also said:

"And by January I said to them that I cannot properly still completely do my job duties and responsibility completely because my finger is still not good. But the manager, he completely still pushing me to do the renovation.

And since I told you that they told me that I have to stop have a relationship with WCB and I'm still paying the car. So I completely during that time, I decided to work hard, even it's hard. My hand is still in bandage, still bleeding sometime, but I work…

like from March, I have accident that time and I said to the manager that my finger is getting worse and I cannot work."

The worker said that he missed medical appointments because he lived a long distance from the medical offices and could not afford bus fare.

After he stopped working, the worker said that he stayed home and looked after his young children while his wife worked. He said that his finger and hand were painful and that the pain was worse in the evening.

In his Notice of Appeal the worker wrote that "it is oviously (sic) seen that I was suffering of grievous pain from the said injury (doctors documented) w/ stitch granuloma what else I can say, and to prove, this pain was re-operated."

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits from May 29, 2012 to March 24, 2013. For the worker's appeal to be accepted the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity during this period as a result of his workplace injury. In other words, the panel must find that the worker was not able to work during this period due to his workplace injury. The panel was not able to make this finding. The panel finds that the worker's loss of earning capacity was not due to his workplace injury.

The worker explained that he had a complicated relationship with his employer and its manager which extended to non-work related transactions. However complicated the relationship was, the panel is only able to address the issue of whether the worker's inability to work between May 29, 2012 and March 24, 2013 was due to his workplace injury.

The panel notes that the worker quit his job with the accident employer in May 2012. He told the panel that he quit because the accident employer was pressuring him to work outside his restrictions. The employer, on the other hand, states the worker was terminated for job performance problems. The panel accepts the worker's evidence that he quit his job but is unable to relate this decision to his injury. The panel finds that the worker was fit to work, with very slight limitations, during the period from May 2012 to March 2013. In making this determination the panel notes the following evidence:

• the worker saw a physiotherapist on January 26, 2012. She reported that the worker is capable of modified duties and that bilateral hand use is OK. She also noted that he can increase activities gradually.

• in February 2012 the worker had a conversation with a WCB case manager in which he advised that he is working full hours and is no longer going for physiotherapy treatment. He indicated that his finger is doing better and he was given home exercises.

• the worker's evidence at hearing that after he quit working for the accident employer, he was able to work, except for heavy tasks using his left hand. He told the panel that he stayed at home with his children and that his wife went to work. He said that he was able to do activities with the children. He also said that he had pain at night but was good during the day.

• the opinion of a WCB medical advisor who reviewed the file on February 14, 2013 and noted employment restrictions of "To avoid repetitive gripping and manual dexterity activities with the affected left hand for the next 4-8 weeks."

• the opinion of a WCB medical advisor who reviewed the file on March 11, 2013 and noted restrictions at that time of "The claimant should avoid repetitive firm gripping and grasping with the left hand, repetitive lifting of 15 lbs or greater with the left hand and repetitive movements of the left index finger."

• the opinion of a WCB medical advisor who reviewed the worker's file on April 12, 2013 and noted that the worker ceased to work but that "…it seems likely that even allowing for the ci (compensable injury) related condition [the worker] would have been fit to continue to perform his duties as a maintenance worker through 2012 until the time of his March 2012 surgery. The work duties were varied and overall light in nature, such that the subsequently reported stiffness and possible limitations in joint ROM would not likely have precluded him from performing his job duties."

• the lack of medical treatment and attention received by the worker and the lack of evidence to support his contention that he could not work. The worker attended a physiotherapy session in January 2012 and missed appointments to see a surgeon about problems with his hand. He finally saw the surgeon on March 7, 2013. At that appointment, the surgeon noted "good range of motion of the finger" and recommended surgery to remove a stitch granuloma.

The worker referred to his visits to his family physician in support of his position that he was unable to work for medical reasons. The panel notes that this physician provided a report dated January 31, 2013, which was received on September 5, 2013, indicating that the worker would not have been able to work during the period from May 2012 to March 2013. However, the physician provides no examination findings or tests to substantiate this opinion. The panel is unable to give any weight to this opinion in its decision making.

The panel accepts that the worker quit his job in May 2012 but is unable to relate his decision to quit his job to the compensable injury. The panel finds that the worker could have worked full-time at other suitable employment during this period. Accordingly, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity due to the workplace injury during the period from May 29, 2012 to March 24, 2013.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
G. Ogonowski, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 23rd day of December, 2013