The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing decisions made by Review Office ofthe Workers Compensation Board regardingthe acceptance of the worker's claim for compensation and adjudication of theworker's compensable benefits.  Ahearing was held on October 27, 2015 to consider the issues.

Issue

Whether or not the claim is acceptable; and

Whether or not the worker's benefits have been properly administered.

Decision

That the claim is acceptable; and

That the worker's benefits have been properly administered.

Decision: Unanimous

Background

On November 21, 2012, the worker filed a claim with the WCB for a left elbow injury that occurred at work on July 19, 2012. The worker stated that there were approximately six witnesses to the incident, one of whom was the foreman. He could not remember all of the names of the other witnesses. The worker advised that he had had pins placed in his left elbow when he was about 12 or 13 years old, and that the blunt force trauma caused the pins to move. After the injury, surgery was done to have the pins removed. The worker further advised that part of the initial incident to the elbow caused a small open wound which caused an infection, and that the infection led to the failure of his pacemaker. He said that he had missed a significant amount of time at work because of his injury, and was currently going for IV treatments at the hospital 3 times per day. The worker stated that his left elbow was currently 3 times the size of his other arm.

On November 29, 2012, the worker called the WCB to enquire as to the status of his claim. He stated that there were witnesses to the incident and that he was not the type of person that stopped work because he banged his elbow. The worker stated he got the flu about a week after the incident, on July 25 or 26, 2012, and sought medical attention. The doctor noticed how swollen his elbow was, and told him that it was infected.

On December 3, 2012, the WCB adjudicator spoke with the foreman that the worker had identified. In a memo to file, the adjudicator noted that the foreman confirmed that he saw the worker hitting his elbow. The foreman indicated that the worker really hit the elbow hard and hopped around in pain for some time. He said that he knew that the worker had ongoing issues with the elbow, as the worker mentioned his elbow difficulties from the day of the accident to sometime in September or November when the foreman left the job site.

On December 4, 2012, the employer filed an Employer's Incident Report. On December 10, 2012, the employer's representative advised the WCB that they were going to oppose the decision to accept the claim, as they had not been aware of the incident or injury, and the proper channels were not followed.

On December 10, 2012, a WCB medical advisor provided an opinion as to whether the infection which had developed in the worker's elbow was related to the workplace injury.

By letter dated February 6, 2013, the employer was advised that the WCB accepted the claim, as a relationship had been established between the development of the worker's difficulties and an accident arising out of and in the course of his employment.

On February 11, 2013, the employer requested a review of the WCB's decision to accept the claim.

On April 5 and 24, 2013, the employer submitted additional information to the WCB to support its position that the worker's claim for compensation should have been denied.

On April 19, 2013, the WCB advised the employer that information received showed that there was evidence of a pre-existing condition which contributed to the worker's time loss from work, and that 50% of the total costs of the claim would therefore be removed from the employer's firm experience.

On May 9, 2013, the WCB reaffirmed its decision that the worker's claim was acceptable, noting that the following information had been considered in making that decision:

• The worker reported that he struck his left elbow on a bracket of a boom while at work on July 19, 2012. The worker reported it to the foreman and five others witnessed the incident.
• The foreman confirmed that he witnessed the worker striking his elbow, and that he was aware of the worker's ongoing issues with the elbow from the day of the incident until the foreman left, in September or November 2012.
• The medical information confirmed that the worker sought medical treatment on July 26, 2012 for a non-healing wound to the left elbow.

The WCB also reaffirmed that 50% of the total costs of the claim would be removed from the employer's claim experience.

On May 28, 2013, the worker was seen at the WCB's office for a call-in assessment. The examining WCB medical advisor indicated that the current diagnosis appeared to be a small open wound / resolving soft tissue infection at the left posterior elbow and degenerative changes / osteoarthritis at the left elbow. Temporary work restrictions were outlined.

On June 18, 2013, the employer advised that they could accommodate the worker in their Edmonton office.

On August 19, 2013, the WCB wrote to the worker to confirm the details of his revised return to work program with the employer, to begin August 26, 2013, and to confirm the restrictions.

The worker reported to work in Edmonton on August 26, 2013, but returned to Manitoba at the end of the day on August 27, 2013.

By letter dated September 3, 2013, the worker was advised that "Given that … modified duties have been available and within your restrictions since August 26, 2013 and the fact that there is no medical evidence of disability from this work, the WCB is of the opinion that there is no loss of earning capacity in relation to the compensable injury beyond August 25, 2013."

In a further decision dated September 9, 2013, the WCB advised the worker that the time he missed from work beyond August 27, 2013 had not been approved since his employment relationship with the accident employer had ended effective August 27, and he no longer had a loss of earning capacity. On September 15, 2013, the worker appealed the WCB decision to Review Office.

On November 15, 2013, Review Office denied the worker's appeal. Review Office noted that the worker advised that it was the drive out to Alberta which caused the increased symptoms and not the modified duties. Review Office found that there was insufficient evidence to support that the drive caused a significant increase in the worker's symptoms which rendered him unable to perform the modified duties. It found that the worker left his employment on August 28, 2013 without notifying the employer, and that the worker's termination was not related to the compensable injury. Review Office concluded that the worker was not entitled to wage loss benefits beyond August 25, 2013 as the worker's loss of earning capacity was not related to the July 19, 2012 compensable injury.

On January 21, 2014, the worker underwent open debridement and excision of the left olecranon bursa.

On March 4, 2014, the WCB advised the worker that it was determined that he was fit to participate in modified duties for a full shift, with temporary restrictions. There was, however, no loss of earnings as he had abandoned his employment in August 2013.

On April 8, 2014, the WCB advised the employer that based on a review of current information in consultation with a WCB medical advisor, it was determined that the January 21, 2014 surgery and subsequent time loss following the surgery were directly related to the worker's compensable injury. Wage loss benefits would therefore be reinstated effective January 24, 2014, and continue until March 6, 2014, the date on which the worker was considered to be fit for full modified duties. The WCB further advised that it would continue to pay for medical expenses directly related to the July 19, 2012 workplace injury.

On April 17, 2014, the employer requested reconsideration of the WCB's decision to accept the worker's claim as well as the continuation of benefits on the claim.

On October 29, 2014, Review Office determined that the worker's claim was acceptable and that benefits had been administered appropriately. Regarding claim acceptance, Review Office acknowledged the employer's arguments that the worker did not initially seek medical attention for his elbow on July 26, 2012, but rather for an unrelated medical condition. Review Office also acknowledged the employer's concern that the worker did not report the incident until two and a half months after the accident, and its position that the claim should therefore be disallowed.

Review Office referred to subsections 17(1) and 17(5) of The Workers Compensation Act (the "Act") and stated:

In practice, the thirty day time limit is rarely enforced, and would only be considered applicable if the evidence showed that an accident was unlikely to have occurred. In this case, the Review Office notes the event was witnessed, and an injury was confirmed that is consistent with the mechanism (i.e. banging his elbow). The worker was in the course of his employment at the time he was hurt, and the accident arose out of his job duties. The claim is a just one, and therefore should be allowed.

With respect to payment of benefits, Review Office accepted the medical opinion outlined following the May 28, 2013 examination by a WCB medical consultant, and confirmed that a loss of earning capacity (limited ability to work and earn a wage) existed to that point in time, and that this equated to entitlement to wage loss benefits. Review Office confirmed that the worker was entitled to wage loss benefits from January 21, 2014, the date of his compensable surgery, to March 6, 2014, the date on which his loss of wages was again related to his election to abandon his employment.

Review Office referred to the employer's argument that the worker made healthcare choices that negatively impacted his recovery and that he failed to fully mitigate his circumstances as outlined in section 22 of the Act. In this respect, Review Office found that the worker was confronted with a complicated medical picture, and that he adequately mitigated his circumstances. Review Office concluded that the worker's benefits had been properly administered and that he was entitled to medical aid benefits.

With respect to the employer's request that the decision to fund medical aid benefits on an ongoing basis be reconsidered, Review Office determined that the file should be returned to Compensation Services to address whether the WCB is accepting a long term responsibility for the worker's elbow condition, and that in the interim, the worker remained entitled to medical aid benefits.

The employer disagreed with Review Office's decision, and an appeal was filed with the Appeal Commission. An oral hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations, and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act 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. Subsection 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the board.

Subsection 17(1) of the Act provides that a worker shall provide the employer with notice of an accident as soon as practicable, and not later than 30 days after the accident. Subsection 17(2) provides that the notice shall be in writing. Failure to provide notice is a bar to a claim unless the worker can rely on one of the grounds provided for in subsection 17(5) of the Act, which reads as follows:

17(5) Failure to give the notice required by virtue of this section, unless excused by the board, on the ground

(a) that notice for some sufficient reason could not have been given; or

(b) that the employer or his superintendent or agent in charge of the work where the accident happened had knowledge of the injury; or

(c) that the board is of opinion that the claim is a just one and ought to be allowed;

is a bar to any claim for compensation under this Part.

Subsection 22(1) of the Act deals with the duty of a worker to co-operate and mitigate and provides as follows:

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Employer's Position

The employer was represented at the hearing by its Director of Health, Safety and Environment.

The employer's position was that the worker's claim should not have been accepted for many reasons. The employer noted that the claim was not filed until 2½ months after the alleged incident, contrary to WCB and the employer's own requirements. It was submitted that the employer was unaware of the injury on July 19, 2012, and only learned of the WCB claim once the claim was filed and it was contacted by the WCB. In the course of the hearing, the employer representative acknowledged that based on the file documentation, the worker did go and tell somebody that he was injured. He again noted, however, that the employer's processes for reporting and best practices were not followed.

The employer later learned that the WCB accepted the claim based on the fact that they contacted the foreman, who told them that he saw the incident. The employer then did its own investigation and spoke with the foreman, who denied that he saw or ever said that he saw the incident. The employer submitted a signed statement from the foreman, dated October 23, 2015, which stated, among other things, that he did not actually witness the incident first hand. The employer representative acknowledged that the foreman was on site that day, and that he had said that the worker told him he had hurt his elbow.

The employer accepted that the worker did in fact bump his elbow, but "not to the extent of the manifested injury that [the worker] suggested he sustained while he was employed with [the employer]." It was submitted that the worker most likely injured himself at home and used his bumped elbow as a scapegoat in order to receive WCB benefits. During the hearing the employer representative acknowledged that he had no proof that the worker injured himself at home, and that he would have no way of obtaining such proof.

It was further submitted that the employer had no knowledge of any pre-existing injury. This was not reported to the employer when the worker was hired. On the contrary, the worker signed orientation documentations at the time of hire indicating that he did not have any pre-existing physical or mental problems.

The employer submitted that the worker's healing process was compromised in a number of ways by the worker. It was noted that documentation on file showed that the worker initially refused IV antibiotic therapy, thus prolonging his recovery. In response to a question from the panel, the employer representative acknowledged that whether orally or by IV, the worker did take those medications, but that the IV was what the doctor prescribed.

With respect to the issue of the worker's entitlement to benefits, it was submitted that the employer should not be responsible for all or most of what it has been charged with. The healing process was delayed and expanded because the worker did not properly follow instructions or take better care of the wound and because he had all of the other health issues and pre-existing conditions. There were also times where the worker was supposed to return to work but did not do so. With respect to medical aid, it was further submitted that the employer should not be responsible for the pin or hardware in the elbow and the infections; that it is really tough to blame those things on the employer without knowing more about them.

Worker's Position

The worker was self-represented, and was accompanied by his wife at the hearing.

He outlined his position on the issues and answered questions from the panel. The worker submitted that there was 8 or 10 others standing beside him when he hit his elbow, and that he was dancing around and swearing. The foreman was there. In response to a question from the panel, the worker agreed that it was fair to say that the foreman may not have seen his elbow touch the bracket, but that he saw the aftermath and knew he had hurt his elbow.

The worker said that his wife is a nurse. When he went home, they would bathe his arm in Epsom salts and bandage it. His wife confirmed that after he bumped his arm, the worker just had a small scrape. Her concern at the time was to keep it clean, given the environment he was working in. They did not know that the pins were loose. They did not find that out until a week later when the arm was x-rayed.

The worker stated that when he went back to the employer a week or so later, they already knew about the injury. They did not tell him to fill out "any piece of paper".

With respect to work that he was said to be doing at home, the worker stated that he hired kids to help him and that he would stand nearby and help them using his right arm. He said that he had never operated the chainsaw, that it belonged to his wife. He acknowledged that he rode his quad, and placed his left hand on the gearshift when he did so.

Analysis

1. Whether or not the claim is acceptable

The first issue which is before the panel is whether the claim is acceptable. In order for the employer's appeal on this issue to be successful, the panel must find that the worker did not suffer an injury arising out of and in the course of his employment, and in particular, that his left elbow issues were not causally related to a July 19, 2012 workplace incident. The panel is unable to make that finding.

With respect to the reporting of the accident, the panel is satisfied that any failure to give notice in accordance with section 17 of the Act ought to be excused as falling within the exceptions listed in subsections 17(5)(b) and (c) of the Act. In this regard, the panel notes that the employer representative candidly acknowledged that the worker approached people and told them that he was injured, and that the employer's agent (the foreman) was aware of the incident happening at the time. The panel accords little or no weight to the recent statement from the foreman that he did not see the accident, and places greater weight on the contemporary record of his oral statement to the WCB. The panel therefore finds that the employer had notice of the injury on the date of the accident, which is well within the reporting requirements under the Act. Section 17 therefore has no application to the case at hand.

While the employer also referred to its own reporting requirements, the panel notes that whether the worker met the employer's reporting requirements is an internal matter between the employer and the worker.

The panel then considered whether the mechanism of injury was consistent with the medical diagnoses later attributed to the workplace incident. The panel finds, on a balance of probabilities, that the infection and complications with respect to the hardware or pin in the worker's elbow were related to the accident of July 19, 2012.

The panel finds that the worker suffered a very sharp and direct blow to his left elbow while at work on July 19, 2012. It was witnessed by a number of co-workers, and the foreman was aware of the worker's ongoing difficulties on that day and in the days following. The panel notes that the difficulties with infection and the pin in the worker's elbow showed up within a very short period of time after the accident, establishing continuity of symptoms between the incident and first treatment.

On December 3, 2012, an opinion was sought from a WCB medical advisor who opined:

It is quite possible that a significant soft tissue injury to the soft tissue overlying the orthopedic hardware in the left elbow could result in cellulitis (soft tissue infection) and subsequent bone infection. The family doctor has supported this sequence of events in reports from September and October 2012 and an orthopedic surgeon reported a similar mechanism in his initial September 26, 2012 narrative report back to the family doctor. These reports are supportive of a relationship between an injury of July 19, 2012 and the subsequent cellulitis and bone infection, but there is a 2 month gap in the time of the injury and the first physicians (sic) reports from Manitoba. The mechanism is possible but there is not any information from around the time of the injury to support it.

The panel accepts the opinion of the medical advisor, noting that the reservations expressed in the last two lines of the opinion have been removed by our earlier findings.

In light of the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a workplace accident on July 19, 2012, causing injury to his left elbow. The employer's appeal on this first issue is therefore dismissed.

2. Whether or not the worker's benefits have been properly administered

The second issue is whether the worker's benefits have been properly administered, or in other words, correctly adjudicated. In order for the employer's appeal to be successful on this issue, the panel must find that the worker's benefits have not been properly or correctly adjudicated. The panel is unable to make that finding.

In advancing its concerns, the employer could not point to any specific instances where it believed that the WCB had paid too much or done too much. Rather, its concerns were of a more general nature.

With respect to those concerns, the panel finds, based on a careful review of the evidence on file and at the hearing, that the worker dealt with the medical community appropriately and that medical care was sought in a timely manner. The panel is satisfied that medical reports were submitted and treatment provided in a timely fashion.

The panel is also satisfied that the worker submitted to all treatments that were provided in a reasonable and timely manner. Specifically with respect to IV antibiotic treatment, the evidence indicated that the worker has a phobia regarding needles, and therefore made a choice to take the medication orally. He did not refuse to take medications, and the panel finds his decision to take the medications orally to be reasonable in the circumstances.

The panel is also satisfied that the worker attempted to return to work once he was cleared, both in February and in August, 2013. The start date for the worker's return to work in August was delayed when his wound opened up again, and this was followed up with treatment monitored by the WCB case manager. The worker had medical support not to return to work on the original date, and the panel is satisfied that it was appropriate that he sought medical clearance before returning to work. The panel finds that there was no evidence of undue delay.

The panel is further satisfied that the worker did not delay or interfere with his recovery. The panel notes that the worker is right-handed, and accepts the evidence of the worker that he used his right hand when performing various duties and activities at home, and that he limited his work to the activity level which he could sustain. While the employer also submitted that the worker exceeded his restrictions when he returned to work, the panel notes that to the extent that that may have occurred, that was a matter which was within the employer's control.

In the circumstances, the panel finds, on a balance of probabilities, that the worker complied with the duty to co-operate and mitigate as set out in subsection 22(1) of the Act.

For the foregoing reasons, the panel finds that the worker's benefits have been correctly adjudicated. The employer's appeal on this second issue is dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 23rd day of December, 2015