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 capable of working full time hours and therefore he was not entitled to further wage loss benefits beyond December 17, 2012. A hearing was held on February 12, 2014 to consider the matter and the hearing reconvened on April 14, 2014.

Issue

Whether or not the worker is entitled to wage loss benefits beyond December 17, 2012.

Decision

That the worker is entitled to wage loss benefits beyond December 17, 2012.

Decision: Unanimous

Background

On October 19, 2009, the worker suffered injury to his right wrist during the course of his employment as a machine operator. The accepted compensable diagnosis was a scapho-lunate ligament rupture. File records showed that the worker underwent three surgical procedures to his right wrist which included arthroscope, scaphocapitate limited wrist fusion and more recently a right hand extensor tenolysis (performed August 23, 2012).

On September 24, 2012, the WCB received correspondence from the treating orthopaedic surgeon stating that the worker was having a significant amount of pain and swelling since his recent tenolysis although range of motion was improved. The surgeon stated that the worker was to continue with physiotherapy until his recovery plateaued and it would take another 3 months for the swelling to settle down. He said the worker was restricted to very light sedentary duties and once he had recovered from his surgery, he may progress to regular activities.

On October 10, 2012, the worker voiced concerns that he should not participate in a graduated return to work as he was still attending physiotherapy treatment and had pain and swelling in his right wrist.

In a letter dated October 10, 2012, the case manager advised the worker that the WCB felt he was able to participate in a return to work program with restrictions of light sedentary activities with only minimal use of his injured hand. To support her decision, the case manager considered the following:

• the opinion of a WCB medical advisor that the usual typical recovery time after surgery was 4 to 6 weeks and that light sedentary type duties with the injured hand would be appropriate after 2 to 4 weeks.
• the worker was 7 weeks post surgery and the medical reports on file did not reveal any post operative complications resulting from the August 2012 surgery.
• the September 2012 opinion by the orthopaedic surgeon that the worker was restricted to very light sedentary duties.
• the treating physiotherapist supported that the worker could return to modified/alternate work while participating in rehabilitation therapy.
• the employer was able to accommodate the worker with tasks respecting his restrictions. The duties included answering phones, data entry work, making kits, counting and maintaining inventory.
• the WCB felt the duties were reasonable based on earlier worksite visits by the case manager and a WCB rehabilitation specialist.

The case manager advised the worker that if he chose not to participate in the return to work, his wage loss benefits would be suspended.

File records showed that the worker returned to work performing sedentary light duties but later advised the WCB that he was unable to work more than 4 hours per shift due to pain and swelling in his wrist.

On November 19, 2012, the treating surgeon reported that clinical examination of the worker's hand showed swelling with limited movement of the wrist and fingers. The surgeon stated that the worker should stay at 4 hours per shift and should avoid heavy and/or repetitive activities. In a further letter dated December 12, 2012, he stated "…since after 4 hours of work per shift his hand became swollen and tender that he should be maintained at this level for now. The intent would be however to increase the amount of time per shift as tolerated based on his symptoms. His restrictions to light non repetitive duties should be maintained as he increases his hours per shift. He should wear a supportive wrist brace on an as-needed basis if his wrist becomes painful during work. The alternate duties described in your letter that were provided for [the worker] seemed reasonable."

By letter dated December 21, 2012, the WCB case manager advised the worker that the WCB supported the recommended graduated return to work plan starting October 22, 2012 with the expectation of a return to full hours by December 18, 2012.

On January 28, 2013, a WCB medical advisor stated that the medical evidence did not support that the worker was unable to participate in full time work activities which respected his functional limitations. On January 30, 2013, the WCB case manager advised the worker that based on the comments made by the WCB medical advisor, his return to work schedule was reasonable and it allowed him to mitigate his full loss of earnings.

On April 10, 2013, the worker appealed the January 30, 2013 decision to Review Office. The worker stated that he followed the advice of his treating surgeon that he should not increase his hours of work beyond four hours per shift as was noted in the surgeon's report of November 19, 2013. The worker said he was hoping to eventually return to his normal duties and hours however this did not yet occur due to his injury.

A report was received from the orthopaedic surgeon dated April 12, 2013. He noted that the worker felt a popping sensation on the dorsum of the wrist and since then he has had more pain and swelling. The surgeon indicated that the worker was advised to move on and start to participate in some form of employment that did not require heavy or repetitive activities with his right hand.

On June 26, 2013, Review Office placed a memo to file regarding a conversation with the employer with respect to the work duties being performed by the worker.

In a decision dated July 4, 2013, Review Office determined that there was no entitlement to wage loss benefits beyond December 17, 2012 as it found that the worker's job duties with the employer were within his restrictions and that the worker was capable of working full time hours effective December 18, 2012. Review Office noted that the worker's wrist pain had been ongoing and not exclusive to working or increasing his work hours. Review Office indicated that the surgeon's opinion had been consistent throughout the file that the worker's wrist pain will likely persist and he will likely never be pain free. This, however, did not preclude him from working. On October 31, 2013, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on February 12, 2014.

Following the hearing, the appeal panel met to discuss the case and decided to attend the employer's work site to view the worker's work station and the jobs he performed during his return to work. The work site visit occurred on March 3, 2014 and the hearing reconvened on April 14, 2014.

Reasons

Applicable Legislation and Policy

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

Relevant provisions of the Act include:

• ss. 4(1) provides that 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.
• ss. 39(1) provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…”
• ss. 39(2) provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
• ss. 40(1) provides that the loss of earning capacity is the difference between the worker's net average earnings before the injury and the net average amount the WCB determines the worker is capable of earning after the accident.

The worker has an accepted claim for a right hand injury and is seeking compensation benefits beyond December 2012.

Worker's Position

Initial Hearing February 14, 2014:

The worker was self-represented but was assisted by a friend. The worker also had assistance from an interpreter at the initial meeting. His wife also attended. The worker answered questions posed by the panel.

The worker told the panel that since his accident he has been following his physician's advice. He said his physician advised him that his injury is permanent. He advised that he wears a brace. He said the wrong movement causes an electric shock feeling in his right hand. He also said that he wears gloves to protect his hand.

Regarding his duties, he said that he has to struggle to work as hard as possible in the job and is pleased with his role in organizing the hardware department.

The worker provided multiple pictures of his workplace including pictures of him performing his duties. He explained the activity or materials shown in each of the pictures.

Reconvened Hearing:

The hearing reconvened after the work site visit. The worker was assisted by his friend. His wife also attended.

The worker provided a written submission outlining his final comments. He told the panel that his physician told him to try to work 4 hours and he is now working 5 hours. He said his hand gets swollen and that is why he cannot exceed five hours. He acknowledged that on occasion he works outside his restrictions. In his opinion, his hand is getting worse. He said that his orthopaedic surgeon told him it would worsen.

Regarding the duties that he was working on in December 2012, the worker denied he was setting up the hardware department, he said he completed this task by December 2012.

Employer's Position

The employer was represented by its Corporate Vice President, Human Resources & Safety at both the initial and second meeting.

The employer representative told the panel that the employer has attempted to accommodate the worker in a position which respects his current restrictions. The representative said that the worker has resisted some of the duties which it feels would accommodate the worker. As an example, the employer said the worker has refused to work in a position involving answering phone calls.

The employer representative acknowledged the worker's efforts in setting up the hardware department. He said that the duties the worker performs are of value to the employer.

The representative said that while the worker maintains he can only work for 5 hours, the file evidence does not confirm this. He said the employer is committed to following the physician's recommendations and that the employer can accommodate him in full-time employment that respects his restrictions.

Analysis

The issue before the panel is whether the worker is entitled to wage loss benefits beyond December 17, 2012. The worker has worked reduced hours (now 5 hours per day) since his return to work and is seeking payment for the time he has missed. For the worker's appeal to be successful, the panel must find that the worker was not capable of working full-time in the position provided by the employer and is entitled to be paid wage loss benefits for the time that he missed. The panel was able to make this finding, on a balance of probabilities.

To assist with its adjudication of this appeal, the panel visited the worksite where the worker demonstrated the various duties and tasks that he performs, along with some modifications to tools he had developed.

The panel makes the following observations based on its visit to the worksite and the duties which the worker demonstrated:

• the worksite was very busy, with multiple employees performing varied tasks.
• the parts assembly tasks which the worker demonstrated involved significant use of his right hand, albeit primarily as an assist to his left hand. These duties also included assembling cardboard boxes of various sizes, packing and wrapping materials and placing in boxes.
• the worker worked constantly at a fast pace, with consistent incidental use of the right hand of which the worker was not even aware.

The panel acknowledges that the tasks in the workplace vary depending on orders that must be filled. It notes that the tasks which the worker demonstrated on the worksite visit are not performed every day by the worker and may differ from the tasks that were to be performed in December 2012. However, the panel finds that the tasks involved significant use of the worker's right hand. The panel finds that the worker used his right hand, at times unintentionally, to perform the duties, and overall, much more than the worker or the employer were aware. While there were discussions about other ways of performing those job duties or even of doing them slower, the worker's way of performing the tasks was acknowledged by the worker and employer to be accurate.

Based on the panel's observations of the worker performing duties in the workplace and the medical and other information in the worker's file, the panel finds, on a balance of probabilities, that as of December 17, 2012, the worker was only able to work reduced hours at the assigned tasks and is entitled to wage loss benefits after December 17, 2012. In this regard, the panel notes the ongoing support of the worker's orthopaedic surgeon that he perform light non-repetitive duties, and that pain and swelling would be ongoing consequences otherwise.

However, going forward, the panel finds that the worker is able to increase his hours if provided with appropriate duties and work procedures which do not involve the use of the worker's right hand. The panel notes that the employer is committed to finding appropriate duties. The panel believes that with active assistance from the WCB, and their rehabilitation staff, an appropriate position can be identified and modified in the workplace. This will permit the worker to increase his hours to full time on a graduated basis and will provide valuable service to the employer.

The worker's appeal is accepted.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 28th day of April, 2014