Decision #156/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was capable of returning to work as of August 2, 2016. A hearing was held on October 12, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after August 1, 2016.

Decision

That the worker is entitled to wage loss benefits up to August 10, 2016.

Background

On July 14, 2014, the worker reported an injury to her right wrist and fifth finger which she related to using a knife while on a processing line. The claim for compensation was accepted by the WCB and various types of benefits were paid to the worker. Medical reports on file revealed that the worker was diagnosed with a right fifth finger extensor tendon radial band rupture, trigger finger, TFCC tear, ganglion right wrist, right wrist synovitis and low-grade chondral lesion of the distal radius and lunate. On May 31, 2016, the worker underwent surgery to repair the TFCC tear, ganglion, synovitis and the chondral lesion of her right wrist.

In a follow-up report dated July 20, 2016, the treating orthopedic surgeon stated:

I saw [worker] approximately six weeks after a right ulnar sided TFCC repair of her wrist…Her elbow range of motion is such that she has full extension, full flexion and near full supination, but she is quite limited with respect to her pronation as would be expected given the amount of casting and surgery that she has had. She is neurovascularly intact, particularly with respect to the dorsal cutaneous branch of the ulnar nerve…At this point in time, I do not feel that she would be able to work as she is still in significant discomfort and cannot use her right hand at all. I would like her to come back to see me in approximately two months' time, at which point we will reevaluate her wrist. I have advised her that this can take several months to recover from surgery of this magnitude.

On July 22, 2016, a WCB medical advisor was asked to comment on whether the worker could safely return to one-handed light/alternate work duties. In a response dated July 27, 2016, the medical advisor stated:

The injury happened 2 years ago and the worker had this surgery about 2 months ago. In order to achieve the best chance of a successful outcome, it would be best to follow the surgeon's advice about RTW (return to work). His opinion regarding RTW is based on the worker's report of pain.

However, this contradicts medical evidence where return to appropriate work is considered part of the treatment and rehab of a musculoskeletal injury. The wrist is well protected in a cast and there would be no greater risk of re-injury at work than at home. Keeping her off work for 4 months from the surgery is more likely to lead to deconditioning, negative psychological sequelae, etc.

In a report to the WCB dated July 29, 2016, the treating orthopedic surgeon noted that the worker and her husband had raised concerns that if the worker returned to work she would be asked to do more than she was capable of doing. Her concern is that "although she may be offered left handed only duties that she may be obligated to use both hands, which would not be advisable." In answer to specific questions, the surgeon stated:

• If the worker performed light duties with the left wrist in a warm, dry, and clean environment, there is no significant wrist risk to her right wrist. 

• The worker's right wrist injury and subsequent surgery should not affect her ability to use her left uninjured wrist. 

• The worker's right wrist injury and surgery should not affect her tolerance for activities with respect to her left uninjured wrist.

The physician noted that the worker "is still in significant discomfort with respect to her right wrist, which does affect a person's ability to perform any type of work related duties. That said, if her employer could accommodate her, I think it would be beneficial to return to work as well; however, she is quite anxious about this as she feels that she will be obligated to use more than just her left unaffected wrist when performing even light duties."

On July 29, 2016, the WCB wrote the worker with details of her return to work program that was to commence on August 2, 2016. Temporary restrictions were listed as "one handed duties (no use of right hand) in a warm, dry and safe environment." The alternate duties were described as "handing out garments to employees, sorting out gloves and other duties as assigned strictly within your restrictions."

File information showed that the worker chose not to participate in the return to work program outlined on July 29, 2016. On August 4, 2016, the worker was advised by Compensation Services that full wage loss benefits would not be issued for time loss from work effective August 2, 2016 as it was felt that the one-handed duties in a warm and dry environment was a safe and appropriate accommodation at her present stage of recovery. On August 5, 2016, the worker appealed the decision to Review Office.

On September 20, 2016, the employer's representative submitted to Review Office that they agreed with the WCB decision that the worker was not entitled to full wage loss benefits beyond August 1, 2016 based on the opinion of the WCB medical advisor, the treating surgeon and the employer's ability to provide one-handed duties in a warm environment.

In a decision dated October 6, 2016, Review Office determined that the worker was not entitled to wage loss benefits beyond August 1, 2016 as the medical evidence supported that the worker was capable of a return to work as of August 2, 2016. Review Office noted that the worker's decision not to return to work was due to her reluctance to re-enter the workplace based on non-compensable factors that were not a consequence of the workplace accident. On March 29, 2017, the worker appealed Review Office's decision to the Appeal Commission and an oral 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 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.

Under subsection 4(2), 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 or the worker attains the age of 65 years.

The worker has an accepted claim for a workplace injury which occurred in 2014. She is seeking payment of wage loss benefits after August 1, 2016, specifically for the period of August 1st to 21st, 2016.

Worker's Position

The worker was represented by a worker advocate and assisted by an interpreter. The worker's representative provided a written copy of her submission. The worker's representative and the worker answered questions from the panel.

The worker's representative noted that the worker was injured at work on July 14, 2014. Her injury was to her right wrist and the right first index. On March 30, 2015, the worker had a right little finger trigger release. And on June 16, 2015, she had a repair of the radial sagittal band with plication of the right little finger, a joint arthrolysis of the of the right little finger MCP joint, bilateral collateral ligament construction at the MCP joint, and the flexor tenolysis of the FDS and FDP tendons. She then had a third surgery on May 31, 2016 where she had right wrist arthroscopy, arthroscopic assisted mini open TFCC repair, and debridement of low grade chondral lesion of the distal radius and lunate, limited synovectomy of the right wrist and ulnar ganglion excision.

The worker's representative noted that the worker did not return to work until August 22, 2016. She noted that:

• at the time of the surgery the worker's surgeon provided a medical note indicating the worker would require three months off from work. 

• the surgeon saw the worker on July 20, 2016 and provided another note indicating she is likely to need another eight weeks off work. 

• on July 29, 2016, in response to correspondence from a WCB medical advisor, the surgeon advised that the worker could be accommodated within noted limitations. He also pointed out the worker was still in significant discomfort with respect to her wrist, which does affect a person’s ability to perform any type of work-related duties.

The worker's representative submitted that the worker relied upon her surgeon's advice. She was not provided with a copy of the surgeon's July 29, 2016 letter until approximately August 9, 2016.

The representative also noted that the worker's family physician supported her time off work.

The worker's representative submitted that:

In conclusion, we ask that the WCB recognize the worker’s loss of time from August 2nd to 19th as compensable, and that [worker] is compensated for any loss of wages, medical expenses and any other benefits she may be entitled to und the WCB act and policies.

The worker is seeking wage loss benefits for the period of August 2 to August 19, 2016. She noted that the worker was subsequently terminated but the termination is not a factor in this appeal.

In reply to a question, the worker's representative advised that the worker relied upon her family physician's opinion and the surgeon's opinion. She noted that the WCB did not receive the surgeon's opinion until August 8, 2016, so the worker was not informed that her surgeon supported her return to work until after August 8, 2016.

Employer's Representative

The employer was represented by an employer advocate and its Occupational Health Nurse.

The employer's representative advised that the employer's position is that the worker is not entitled to full wage loss benefits after August 1, 2016. She advised that the WCB made a concerted effort, to assist the worker to return to work in light duties, including:

• on June 19, 2016, the WCB medical advisor wrote to the surgeon who replied that the worker wasn’t ready to return to work. 

• on June 21, the case manager also wrote to the surgeon, indicating that the employer could accommodate any restrictions, including working in a warm environment using only her left uninjured hand. 

• on July 21, 2016, the case manager, again wrote to the surgeon indicating that the employer could accommodate any medical restrictions. 

• on July 27, the WCB medical advisor wrote to the surgeon who replied on July 29, indicating there would be no significant risk to the worker's right wrist if she performed light duties with the left wrist in a warm dry environment.

The employer's representative also noted that that the surgeon commented that if the employer can accommodate restrictions it would be beneficial for the worker to return to work.

She advised that the worker return to work on August 22nd, but nothing had changed between August 1st and August 22nd when she did return to work. She also noted that when she did return to work, she reported no concerns and over the following period progressed.

The employer's representative noted the worker's family physician supported the worker's time off work. The representative submitted that:

We believe that the opinion of the surgeon and the WCB medical advisor should be accepted over that of the family doctor. Both supported the return to work in one-handed duties and a warm environment.

The employer representative advised that the worker's employment was subsequently terminated for reasons unrelated to this appeal.

Analysis

The worker has an accepted claim for an injury to her right hand. She is appealing the WCB decision that she is not entitled to wage loss benefits after August 1, 2016, specifically she is seeking wage loss benefits for the period between August 1, 2016 and August 21, 2016.

For the worker's appeal to be approved, the panel must find that the worker sustained a loss of earning capacity during the noted period. The panel is able to make this decision and finds that the worker is entitled to wage loss benefits for the work days between August 1 and August 10, 2016.

In making this decision the panel has considered the full claim file including the worker's employment history and her history of right handed medical problems and surgery. The panel notes that on July 20, 2016, the worker's surgeon provided the worker with a note indicating that: 

This woman had right wrist surgery and cannot work at all for at least 8 more weeks. Her next follow-up appointment is scheduled for September 23, 2016.

Subsequent to this, on July 29, 2016 the worker's surgeon wrote another note in response to a letter from a WCB medical advisor. The worker's surgeon agreed that the worker could return to work to left handed duties. In addition he commented that:

I would like it to be well understood that [worker] is still in significant discomfort with respect to her right wrist, which does affect a person's ability to perform any type of work related duties.

The panel finds, on a balance of probabilities, given the length of disability and number of surgeries the worker underwent, it was reasonable for the worker to rely upon the advice from her treating surgeon. As noted above, on July 20, 2016 her surgeon advised WCB and the worker that the worker "cannot work at all for at least 8 more weeks." A WCB medical advisor then wrote to the worker's surgeon seeking his opinion on a modified return to work. On July 29, 2016 the treating surgeon responded to the WCB Medical Advisor, he agreed with her recommendation that the worker return to work. His reply letter was not received at the WCB until August 8, 2016 (as evidenced by a fax receipt date) and was not delivered to the worker until approximately August 10, 2016.

The panel prefers the opinion of the worker's surgeon and does not attach weight to the opinion the family physician.

In conclusion the panel finds that it was reasonable, in the circumstances of this claim, for the worker to remain off work until she was provided with the July 29, 2016 letter from her surgeon which noted that he changed his positon on the worker's ability to return to work. Upon receipt of a copy of the note from her surgeon, it would have been reasonable for the worker to return to work.

The worker is entitled to wage loss benefits for the work shifts that she missed between August 1, 2016 and August 10, 2016.

As an aside, the panel notes that the letter from the case manager dated August 4, 2016 refers to receipt of the surgeon's response on August 9, 2016. The panel finds that the case manager's letter clearly bears the wrong date. The panel finds this letter was sent after the surgeon's letter was received which was on or about August 8, 2016. 

The worker's appeal is approved in part.

Panel Members

A. Scramstad, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of November, 2017

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