Decision #112/16 - Type: Workers Compensation
Preamble
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was capable of working modified duties at full-time hours after December 23, 2015. A hearing was held on June 15, 2016 to consider the worker's appeal.
Issue
Whether or not the worker is capable of working full-time hours after December 23, 2015.
Decision
That the worker is not capable of working full-time hours after December 23, 2015.
Decision: Unanimous
Background
The worker has an accepted claim with the WCB for injury to his right hand resulting from an August 29, 2013 work-related accident. Medical information showed that the worker sustained fractures to his 4th right metacarpal and 5th proximal phalanx. The worker was initially treated via open reduction and internal fixation along with four subsequent tenolysis procedures between September 2013 and January 2015.
On October 1, 2015, the worker underwent a Functional Capacity Evaluation ("FCE") to determine workplace restrictions related to his right hand. On November 5, 2015, a WCB plastic surgeon consultant noted that the FCE results outlined the following workplace restrictions:
Maximum bilateral lift of 20 pounds on an occasional basis (0-33% of the workday) and 10 pounds on a frequent basis (34-66% of the workday).
Maximum single right arm lift of 20 pounds on an occasional basis and 10 pounds on a frequent basis.
Maximum push/pull of 35 pounds/25 pounds on an occasional basis and 15 pounds/10 pounds on a frequent basis.
The consultant also stated:
The above restrictions can be considered permanent. Based on the FCE report, as long as work duties fall within the abilities demonstrated at the FCE (as noted above) there is no apparent need to impose limitations on work hours.
It was noted in the FCE report that [the worker] demonstrated an inconsistency in his ability to carry bilaterally. In addition, validity tests were not passed for grip strength testing, and so grip strength values are not valid for interpretation of maximum grip strength. In fact, right grip strength was 7% higher than left grip strength. Pinch strength was essentially asymmetric to the uninjured side.
On November 12, 2015, Compensation Services wrote the worker to confirm details of his return to work program that was to commence on November 16, 2015 starting at five hours per day. By January 4, 2015, it was anticipated that the worker would be working full hours in his modified duty position.
On December 28, 2015, the worker appealed the November 12, 2015 decision to Review Office. The worker referred to medical opinions on file from his treating surgeon and family physician to support that he should continue working modified duties at five hours per day due to the nature of his hand condition.
In a memorandum to file dated January 4, 2016, a WCB rehabilitation specialist ("RS") outlined his findings and opinion following a work site visit that took place in December 2015.
In a decision dated January 29, 2016, Review Office determined that there were no restrictions to work reduced hours beyond December 23, 2015 in relation to the worker's compensable right hand injury. Review Office's decision was based on its review of the file evidence which included the opinion of the WCB plastic surgery consultant, the FCE findings, the doctor's report dated November 23, 2015 and the findings of the WCB RS following the worksite assessment. Review Office concluded that the worker was offered suitable work within his compensable restrictions and that by January 4, 2016, he had demonstrated his ability to work full time on the modified duties. Review Office acknowledged the worker's report of right hand symptoms but was of the opinion he was fit to work full hours.
On February 5, 2016, the worker appealed Review Office's decision to the Appeal Commission and an oral hearing was arranged.
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.
Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted by the WCB and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.
The WCB Board of Directors has established WCB Policy 43.20.25, Return to Work with Accident Employer which outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer.
The worker has returned to modified duties. He is appealing the WCB's determination regarding his ability to work full time.
Worker's Position
The worker was self-represented. He was accompanied by an acquaintance. The worker outlined his reasons for appealing and answered questions from the panel.
The worker advised that he feels he can't work a total of eight hours because it’s repetitive. He has to keep changing what he is doing. He stated that:
So, I’ll do this for a while, my hand will start to hurt. I’ll do this for a while, my hand will hurt. I’ll do this for a while. Then I’ll go back to this. And I keep rotating, and after about four hours my hand -- like, right now, is black, blacker than the other one, and it swells, and my baby finger sticks out, way out here. And at eight hours, like, I get home, and I can’t do anything. I can’t, can’t do anything with my right hand, and I’m right-handed.
He noted that the specialist who treated his hand injury advised that he should not work more than five hours.
The worker described how he performs certain tasks. While he is not left handed, he uses his left hand for many tasks. He said that he does not have as much control with his left hand and is not as accurate. He said that part of the difficulty is that the equipment is all set up for right hand use. He described the equipment and how he tries to use it.
The worker advised that there are some tasks that he cannot perform. He described some of these tasks.
When he has completed the available suitable work, he cleans the workplace which includes cleaning washrooms and sweeping the floors.
The worker also advised that all the surgeries have worsened his hand. He said that his hand is worse now than when it was last assessed in August 2015. He also advised that he tried to work eight hours but has not been able to continue so that he is now working six hours per day. He starts at 5:30 a.m. and is physically finished by 11:30 a.m.
Regarding medications, the worker advised that he needs pain control while working but does not use it at home.
The worker advised that he has difficulty following the WCB RS's recommendations to stretch his hand every five minutes and to switch tasks every 20 minutes. He noted there are production deadlines that he feels he must meet which require him to work at one task for longer than 20 minutes.
Employer's Position
The employer did not participate in the appeal.
Analysis
The worker is currently working six hours per day and is appealing the WCB determination that he is capable of working full-time hours after December 23, 2015. For the worker's appeal to be successful, the panel must find that the worker is not capable of working full-time hours. The panel was able to make this finding.
At the hearing, the worker described various tasks that he performs in the workplace. He advised that he rotates tasks, but that the time spent on each task varies and often exceeds the recommended 20 minutes. This appears to be at his choice at times and at other times is due to productions deadlines. It appears the worker has difficulty changing tasks at the recommended frequency.
The panel finds that the worker is currently not capable of working a full eight hours given his injury and the nature of his job. The panel finds that the worker requires a more structured return to work program consistent with the recommendations of the WCB RS as set out in his memorandum dated January 4, 2016. This plan should begin at six hour shifts each work day and increase to full eight hour shifts each work day over a reasonable period of time as determined by the WCB in consultation with the WCB RS, the worker and the employer. The panel also believes that the worker will benefit from more coaching on proper ergonomic techniques and from a better system of understanding and managing job tasks that have production deadlines that preclude appropriate rest cycles.
The worker's appeal is approved, in part.
Footnotes
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 21st day of July, 2016