The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") that he was not entitled to wage loss benefits from May 16, 2011 to January 20, 2013 and that he was only entitled to partial wage loss benefits from January 21, 2013 to July 23, 2015. A hearing was held on August 4, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period May 16, 2011 to January 20, 2013; and

Whether or not the worker is entitled to full wage loss benefits for the period January 21, 2013 to July 23, 2015.

Decision

That the worker is not entitled to wage loss benefits for the period May 16, 2011 to January 20, 2013; and

That the worker is not entitled to full wage loss benefits for the period January 21, 2013 to July 23, 2015.

Background

On January 13, 2011, a 3.5 inch nail from an air nailer penetrated the worker's left palm. In a report dated February 14, 2011, the family physician assessed the worker with a possible left median nerve injury. The treatment plan included physiotherapy, medication and nerve conduction studies.

On March 3, 2011, the worker underwent nerve conduction studies which were read as follows:

This electrophysiologic study of the left hand is normal. There is no electrical evidence of a focal median neuropathy. Ortodromic and antidromic sensory stimulation of the median nerve across penetration area to palmar and digital aspect is normal.

On May 25, 2011, the treating physiotherapist reported that the worker was capable of modified duties with the following workplace restrictions: no lifting over 60 to 70 pounds; full hours. On May 30, 2011, the worker returned to work performing his regular duties in keeping with the workplace restrictions.

Following a WCB call-in assessment on June 10, 2011, the examining WCB medical advisor stated:

As [the worker] has i) reported full left hand strength with no difficulties in performing current job duties, ii) no reported activity-associated exacerbation of his left hand symptoms, iii) essentially symmetric grip and pinch strength on today's examination, and iv) adequate protective sensation in the left fingers and hand, at this time no restrictions are recommended in relation to his current job duties.

….[The family physician] confirmed that a left hand x-ray was performed in January, 2011, which demonstrated no bony abnormalities, no retained foreign bodies, and soft tissue prominence.

On August 22, 2011, a neurologist reported as follows:

[The worker] accidentally shot a large framing nail into the palm of the left hand. Since then he has had pain in the palm of the hand with some involvement of the median innervated fingers, but there has been no significant numbness. It hurts when he grasps things, making it difficult for him to do his job. He is now back to full duties…but working with pain…

Exam shows normal strength and sensation in the left hand with negative Tinel's. There is tenderness just medial to the left thenar eminence in the palm of the hand. No swelling is noted. There is perhaps minimal wasting of left APB but strength is intact.

In conclusion, left median nerve conduction studies were normal in March of this year and again today…I suspect he does have some soft tissue damage giving rise to the pain and tenderness.

In a report dated October 27, 2011, the treating physician said the worker was still having problems with his hand. The worker was getting sharp pains in the thenar area, and at other times his arm would be sore, with a "tennis elbow type feeling/ache" that would come and go. The physician opined that the worker likely had pain secondary to soft tissue injury and inflammation, and had "likely developed a chronic pain syndrome/or is high risk to potentially do so."

On December 22, 2011, the worker advised the WCB that he had quit his position with the accident employer on September 16, 2011, and lost his position with an alternate employer because he could not perform all aspects of the job due to his injury.

In a decision dated January 4, 2012, the WCB advised the worker that wage loss benefits would be paid to August 22, 2011, as the WCB was unable to medically account for his current symptoms in relation to the compensable injury.

On March 2, 2012, Review Office confirmed that the worker was not entitled to further wage loss benefits in relation to his compensable injury. Review Office's decision was based on the findings that the worker performed his regular job duties until he quit his employment in September 2011, the WCB medical advisor's opinion at the call-in examination from June 10, 2011 that ongoing work restrictions were not required, and the findings of the treating neurologists who reported normal test results pertaining to the left hand.

File records show that the worker suffered a new injury to his left hand/wrist on June 12, 2013 while working with a different employer.

On July 24, 2015, the worker underwent surgery to his hand.

On August 12, 2015, a WCB medical advisor reviewed the file at the request of WCB case management and stated:

…the current presentation appears to be that of left hand pain and a mass within the left carpal tunnel. An April 27, 2013 left wrist MRI report noted a lesion adjacent to the flexor tendons at the level of the mid-metacarpals with signal intensity consistent with a small lipoma, whereas the March 11, 2015 left hand/wrist MRI report noted a lesion most in keeping with a cyst, increased since prior examination (1.7 x 0.6 x 0.8 cm). In light of this discrepancy between the MRI reports regarding the nature of the left wrist lesion in the region of the flexor tendons, the proposed surgical excision of the lesion will be funded by the WCB for diagnostic purposes. The relationship of any identified pathology to the workplace injury of January 13, 2011 can be assessed upon receipt of the operative and pathology reports.

On August 18, 2015, the WCB reinstated the payment of wage loss benefits effective July 24, 2015 which was the date of the surgery.

On October 13, 2015, the WCB medical advisor reviewed the July 24, 2015 operative report and stated:

…operative report noted a ganglion dissected away from the flexor tendons in the carpal tunnel and that the median nerve was thickened and edematous, so a neurolysis was performed.

The August 10, 2015 pathology report noted a specimen labeled "left intracarpal ganglion cyst" consisting of a pale brown piece of cyst wall tissue measuring 2.2 x 1.5 x 0.2 cm. The microscopic description noted that "despite deeper levels on both blocks, definitive features of a ganglion cyst were not identified." The final diagnosis was benign fibrovasular (sic) and adipose tissue, negative for malignancy.

The aforementioned pathology report was not able to confirm a diagnosis of a ganglion cyst, though the treating plastic surgeon noted a clinical appearance concordant with a cyst within the carpal tunnel.

…based on the clinical findings there was likely a cystic lesion within the carpal tunnel. The etiology of a cystic lesion in the wrist is often idiopathic, though it may be associated with penetrating trauma. In light of the mechanism of injury of a nail gun inserting a 3.5 inch nail in the vicinity of the carpal tunnel, it appears more likely than not that the cystic lesion found within the carpal tunnel related to the January 13, 2011 workplace injury.

In a submission dated November 30, 2015, the worker requested compensation for lost wages, misdiagnosis, pain and suffering.

Prior to considering the worker's appeal, Review Office asked the WCB medical advisor to review the worker's 2011 and 2013 claims. The medical advisor's response to Review Office is dated March 17, 2016. In part, the medical advisor stated:

In light of the mechanism of injury, i.e. a penetrating nail gun injury at the left hand in the vicinity of the carpal tunnel, the left wrist/hand space occupying lesion, variably referred to as a cyst or lipoma, more likely than not related to the January 13, 2011 workplace injury.

Based on the information in the i) June 10, 2011 call-in examination report, where there was no indication of impairment of left hand function, ii) August 22, 2011 nerve conduction study report noting a normal study, and iii) February 2, 2012 treating physician's report noting findings that did not include measurable impairments of left upper extremity function in relation to the January 13, 2011 nail puncture injury, the medical evidence did not indicate the need to impose restrictions in relation to the January 13, 2011 workplace injury at that time.

Following the June 12, 2013 incident, in which [the worker] reported snapping and pain at the left mid-volar wrist, on June 24, 2013 the treating sports medicine physician recommended 3 weeks of restrictions. There is no further medical information on file until 1+ year later.

…there is no indication on file of workplace restrictions until the July 24, 2015 surgery.

Based on the February 12, 2016 retrospective radiological review, the left wrist mass increased in size from April 2013 to March 2015. In retrospect, it is therefore evident the mass was evolving in that timeframe, and was likely associated with the finding of snapping at the left hand (first mentioned in…February 6, 2013 physician's report).

The presence of an evolving cyst and/or lipoma in the distal aspect of the left carpal tunnel would not have constituted a basis for absolute restrictions on left hand use. On this matter, it is understood that [the worker] worked as a welder in the spring of 2013 and as a welder and mechanic in September 2014 (the latter as per the September 4, 2014 treating plastic surgeon's report). This suggests that notwithstanding the presence of an evolving mass in the distal aspect of the left carpal tunnel, [the worker] had the physical capacity to use his left hand in an unrestricted manner at those times.

Having said the above, some degree of intolerance for repetitive firmly resisted grasping with the left hand, in relation to intermittent snapping at the volar wrist during forceful gripping, would be medically concordant with the presence of an evolving cyst/lipoma in the distal aspect of the left carpal tunnel. In this regard, intermittent restrictions on repetitive firmly resisted grasping with the left hand would, in retrospect, be medically substantiated between February 6, 2013 (when symptoms associated with same were first identified) and the July 24, 2015 surgical excision. This matter is not able to be further quantified in light of the limited medical information over a considerable aspect of the aforementioned time frame…

The medical evidence on file does not substantiate a structural change to the left wrist cyst/lipoma stemming from the June 12, 2013 accident.

On March 24, 2016, Review Office determined there was no entitlement to wage loss benefits from May 16, 2011 to January 20, 2013 as it was determined that the worker did not suffer a loss of earning capacity during this period as a result of the compensable puncture wound or the subsequent development of a cyst/lipoma. Weight was given to the evidence that the worker was able to return to his regular job duties following the workplace accident and worked until he ended his employment with the accident employer in September 2011 with minimal medical evidence in that period to establish the need for workplace restrictions. Although pain complaints were noted, Review Office did not find that this would be a basis for workplace restrictions.

Review Office also found that the first recorded clinical findings indicative of a cyst/lipoma began on January 21, 2013. It accepted restrictions at that time associated with this finding and concluded that the worker would have likely experienced difficulties in performing his full pre-accident duties due to the development of the cyst/lipoma. The restrictions would not, however, have resulted in the worker being totally disabled and not fit for other types of employment.

Review Office found that the worker would have been capable of earning the provincial minimum wage at 40 hours per week from January 21, 2013 to July 23, 2015, and instructed Compensation Services to use this deemed earning capacity to calculate partial wage loss benefits for this time period.

On May 3, 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 WCB's Board of Directors.

Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident.

Subsection 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends, or the worker attains the age of 65 years.

WCB Board Policy 44.80.30.20 (the "Deeming Policy") deals with post accident earnings and deemed earning capacity. Loss of earning capacity is defined as the difference between a worker's average earnings before an accident and what the worker is determined or deemed to be capable of earning after the accident. Among other things, the Deeming Policy specifically describes how deemed earning capacity will be determined for individual claims and states that it must be demonstrated that a deemed earning capacity is reasonable and realistic. Where a deemed earning capacity is established, wage loss benefits will be paid as if the worker were actually earning the deemed amount.

Worker's Position

The worker was self-represented. The worker made a presentation and responded to questions from the panel.

The worker's position was that he was entitled to full wage loss benefits for the entire period from May 16, 2011 to July 23, 2015.

The worker submitted that for 4½ years following his injury, he attended countless medical appointments and repeatedly told the WCB about the symptoms, difficulties and pain he was experiencing, but nothing was done. His problems and complaints were totally swept under the carpet.

The worker said that the WCB told him he was fine and could return to work, but he was not fine. He worked full duties between May and September 2011, but his hand would cramp up and he would call the WCB and complain about the pain he had. Over the years, the pain started going up his forearm, into his shoulder and neck area, the pain medication was no longer working, and he was getting very little sleep. He got a job with another employer, but was let go after about three months because he could not fulfill his work duties due to his fatigue.

The worker said that eventually he took it on himself to seek out help. He attended a pain clinic and was referred to a plastic surgeon who ordered an MRI that identified a cyst. Surgery was performed on July 24, 2015 to remove the cyst.

The worker noted that the WCB had been paying him full wage loss benefits since the date of the surgery. He submitted that although the WCB had also paid certain wage loss benefits retroactively in respect of the period of time before the surgery, they did not go far enough back or pay the full amount to which he was entitled.

The worker noted that his back wages for the period from January 21, 2013 to July 23, 2015 were calculated on an entirely different scale from his full wage loss benefits for the period after the surgery, and submitted that this did not make sense. In his view, to say that he could have worked a minimum wage job at that time was like a slap in the face.

The worker further submitted that it did not make sense that WCB has said that he was not entitled to wage loss benefits with respect to the earlier period, from May 16, 2011 to January 20, 2013, on the basis that he could have worked, when he had continually complained about the pain he was experiencing and the WCB did nothing for him. The problem which his surgeon identified in 2015 and which resulted in surgery proved that everything was not normal in that earlier period and he was not fine.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not the worker is entitled to wage loss benefits for the period May 16, 2011 to January 20, 2013.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker sustained a loss of earning capacity between May 16, 2011 and January 20, 2013 as a result of his workplace injury. The panel is unable to make that finding.

The panel notes that the worker was working at various points in time after May 16, 2011. The evidence shows that he was back at work performing light duties in May 2011, then returned to his regular duties at the end of May. He continued working until September 16, 2011, when he quit. While the worker stated at the hearing that he did not quit, but was terminated, information on file shows that both the employer and the worker stated at or about that time that he quit. The panel finds the worker's departure from his position with his employer on September 16, 2011 was due to his resignation, and that he would otherwise have been earning his pre-accident wages beyond that date and to January 20, 2013.

The panel notes that the evidence following the worker's resignation does not support that the worker could not perform his regular duties with that employer.

The worker stated at the hearing that he was off work for about a year after that, during which time he sat at home doing "absolutely nothing" and did not look for any other jobs.

The worker went back to work for the employer in September 2012. When asked what brought him back to work at that time, he said that he saw the supervisor, who asked him if he would be interested in coming back to work and he said sure. He said that when he returned to work, he was doing the same job as before, working 10 hours a day, 6 days a week. He said that he was terminated after approximately 3 months, and was given no reason for that termination. In response to questions from the panel, he said that he could probably have continued working if he had not been terminated. He also indicated that he would have said yes to going back to his old job earlier if he had been asked, and acknowledged that he was capable of working.

While the evidence indicates that the worker was not working for at least part of this period of time, the panel is satisfied that the evidence also shows that he was capable of working but elected to stay home and not to work or look for work at that time.

As to the worker's capacity to work, the panel further finds that there is a lack of medical evidence to establish medical restrictions that would have precluded the worker from returning to work during this period of time. The worker's evidence at the hearing was that no doctor had expressed any concerns with respect to him working, or said that he should stay home. He said that the first doctor who told him not to work was his treating surgeon, and that this was with respect to his surgery in 2015. The panel therefore finds that the worker was not medically precluded from working full time from May 16, 2011 to January 20, 2013.

In light of the foregoing, the panel finds, on a balance of probabilities, that the worker did not sustain a loss of earning capacity between May 16, 2011 and January 20, 2013 as a result of his workplace injury. The worker is therefore not entitled to wage loss benefits for this period of time.

The worker's appeal on this issue is denied.

Issue 2: Whether or not the worker is entitled to full wage loss benefits for the period January 21, 2013 to July 23, 2015.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker was not capable of working or earning any employment income between January 21, 2013 and July 23, 2015 as a result of his workplace injury. The panel is unable to make that finding.

The panel notes that the worker had been deemed capable of working at minimum wage, full time, in this period of time. The worker asserts that he was in fact totally disabled, and should be entitled to full, not partial, wage loss benefits for that period. The panel finds, however, that there is no medical evidence on file to indicate that the worker was totally disabled during this period of time or unable to work. As previously stated, the worker's evidence was that no doctor expressed any concern with respect to him working, or told him to stay home, until his surgeon told him not to work with respect to his 2015 surgery.

The evidence further discloses that the worker performed work for part of this period of time as well. The panel notes that file information showed the worker worked for another employer for approximately 3 months in mid-2013. The worker described the work he did at that time, and said that it would have been about the same in terms of the use of his left hand as what he was doing for the accident employer. That job ended after he hurt himself and was subsequently laid off. When asked whether he looked for any other work after that, the worker responded:

Yes, yes, and no. I applied for a couple construction places. Well, I got no work. I did some work for myself, just cash under the table. And a lot of it was just me staying home…I sat at home and I took care of the kid.

In light of the foregoing, the panel is unable to find that the worker was completely disabled from doing any kind of work. The panel finds that the worker was appropriately deemed capable of earning the provincial minimum wage at 40 hours of work per week from January 21, 2013 to July 23, 2015. Based on our review of the evidence, the panel finds, on a balance of probabilities, that the worker was capable of achieving at least this level of earning capacity and that it was reasonable and appropriate to implement a deemed earning capacity at this level effective January 21, 2013 to the date of his 2015 surgery.

The panel therefore finds that the worker is not entitled to full wage loss benefits for the period January 21, 2013 to July 23, 2015.

The worker's appeal on this issue is denied.

Panel Members

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

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 30th day of September, 2016