Decision #163/17 - Type: Workers Compensation
Preamble
The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits after May 19, 2016 based on the findings that he was unable to continue with modified duties due to the effects of the medication he was prescribed for his compensable injury. A hearing was held on November 7, 2017 to consider the employer's appeal.
Issue
Whether or not the worker is entitled to wage loss benefits after May 19, 2016.
Decision
That the worker is entitled to wage loss benefits after May 19, 2016.
Background
The worker has an accepted claim with the WCB for an injury to his right index finger that occurred at work on March 14, 2016. The injury resulted in a partial amputation of the right index finger distal phalanx which was treated via revision amputation.
Following consultation with the WCB's healthcare branch, Compensation Services wrote the employer on March 29, 2016, to confirm that the worker was fit for work with temporary work restrictions which were outlined as follows: "One handed duties with the unaffected hand in a clean environment would typically be appropriate." On March 30, 2016, the worker returned to work with the accident employer performing one handed light duties. File records showed that the worker missed time from work in order to attend medical appointments.
On April 25, 2016, the worker advised the WCB that he went to the hospital for treatment because his finger was in a lot of pain and his doctor told him to take a couple of days off work. He said his doctor told him that he may have a "nerve thing" and he was prescribed a particular medication for the pain.
On April 25, 2016, a WCB adjudicator spoke with the worker regarding his pain complaints. The worker advised that his doctor told him there was medication available for the nerve issues and he would need to take it for 3 weeks. There was pain inside his right arm. The worker noted that he had issues with medication as his body does not respond well, so he tried to avoid taking them.
File records showed that the worker continued to miss time from work in April and May 2016 in relation to his pain complaints.
On June 8, 2016, the worker advised the WCB that he stopped work about 2 weeks earlier and had not returned to work. The worker stated that he started to take a second medication about May 19, 2016 and it made him nauseous. He said he felt lethargic and tired and unable to do much. He said it "messes" with his mood. He said that due to his symptoms, his doctor prescribed him a third medication. As this third medication was not effective, he went back to taking the second medication about three days later.
In a decision dated June 10, 2016, Compensation Services advised the worker that his recent time loss of May 20, 2016 to date was not compensable as there was suitable modified work available and no medical evidence of total disability at this time. The decision was made after review of the medical information on file from his treating physician dated May 20, 30 and June 3, 2016, the physiotherapy report of May 17, 2016 and the WCB medical opinion of June 9, 2016.
On August 4, 2016, the worker was advised by Compensation Services that the decision made on June 10, 2016 remained unchanged based on a review of a Functional Capacity Evaluation report of June 30, 2016 as well as call-in examination notes of June 30, 2016 and a WCB healthcare opinion dated August 2, 2016.
On November 24, 2016, the Worker Advisor Office asked Review Office to reconsider the decisions made on June 10 and August 4, 2016. The worker advisor referred to the medical information on file to support that the worker was not able to return to work due to the side effects of his medication and that he continued to suffer from the effects of his compensable right index finger amputation. The worker advisor stated in part, that the WCB's plastic surgery consultant spoke with the attending physician on August 10, 2016 and noted that the worker could perform modified duties but only after the side effects from the medication wore off. This and the other medical information on file supported that the worker was not able to return to modified duties and he continued to be in a loss of earning capacity beyond May 20, 2016.
On January 31, 2017, Review Office determined that there was entitlement to wage loss benefits beyond May 19, 2016. Review Office found the evidence on file demonstrated that the worker was experiencing multiple difficulties related in part to the compensable injury and in part to the side effects of the medications prescribed for the compensable injury. Review Office agreed with the WCB plastic surgery consultant that the worker's ability to work could have been compromised due to the medication intake. It also found that the worker's healthcare providers supported the worker missing time from work. Review Office referred the claim file to Compensation Services to determine the duration of the worker's further entitlement to wage loss benefits beyond May 19, 2016.
In a decision dated February 15, 2017, Compensation Services advised the worker that he was entitled to wage loss benefits from May 20, 2016 to October 22, 2016 based on the findings that the negative effects of the medication he was taking, financially supported by the WCB, would have been completed by October 22, 2016.
On March 22, 2017, the employer's representative appealed Review Office's decision dated January 31, 2017 to the Appeal Commission and an oral hearing was arranged.
Reasons
Analysis
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors.
Under subsection 4(1) of the Act, 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 27(1) provides that the WCB may provide the worker with such medical aid as the board considers necessary to cure and provide relief from a work injury.
Subsection 39(1) of the Act provides that wage loss benefits will be paid: “…where an injury to a worker results in a loss of earning capacity…” Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends, or the worker attains the age of 65 years.
The WCB Board of Directors enacted WCB Policy 43.20.25, Return to Work with Accident Employer (the Policy). This policy provides, in part, that:
Suitable Modified or Alternate Work
Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker’s pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.
To determine if the worker is medically able to perform suitable work, the WCB will compare the worker’s compensable medical restrictions and capabilities to the demands of the work.
The worker has an accepted claim for a workplace injury on March 14, 2016. The employer is appealing the WCB decision that he is entitled to wage loss benefits after May 19, 2016.
Employer's Position
The employer was represented by an advocate who participated in the appeal by telephone conference.
The employer representative submitted that the worker was not totally disabled and able to participate in a return to work. He referred to the Policy. He submitted that, as required by the Policy, the employer provided suitable work which the worker was medically able to perform. The duties provided by the employer included sitting down and using only his left hand.
The employer representative noted the worker stopped work 2 months after the incident and there was ample recovery time for the worker. He also noted there was no damage to the worker's bone or finger nail as a result of the injury.
The employer representative commented that it was difficult to ascertain what was happening on the claim. From the employer's perspective, there was not anything on file from May 19 to mid-June that showed the worker could not work.
He noted there was concern about a reaction by the worker to the use of a medication, but that the evidence shows the worker stopped work before he started using the medication which was said to cause the side effects.
The employer's representative submitted that the employer had offered the worker suitable work which the worker was medically able to do but that the worker did not report to work.
The employer representative submitted that the WCB granted wage loss benefits in error after May 19, 2016.
Worker's Position
The worker was represented by a worker advisor.
The worker advisor advised that the worker never refused modified duties. She noted that on May 20, 2016 the worker sought medical attention.
The worker's representative noted that on June 9, 2016, a WCB plastic surgery consultant commented that:
The use of [second medication] and [other medication] are appropriate for the treatment of amputation related pain symptoms. These are not pain killers (analgesics) but "add-on" medications which are used to help treat symptoms attributed to neuropathic pain.
The worker's representative said the worker could not continue working due to the side effects of the medication which had been prescribed for treatment of the pain the worker was experiencing. She noted the June 10, 2016 report of the treating physician took the worker off work due to pain, swelling and the side effects of the medication.
In conclusion, the worker's representative submitted that the WCB rightly continued providing wage loss benefits to the worker after May 19, 2016. She said that the evidence supports the finding that the worker sustained a loss of earning capacity after this date.
Analysis
The employer is appealing the WCB decision that the worker is entitled to benefits after May 19, 2016. For the employer's position to be approved, the panel must find that the worker's loss of earning capacity after May 19, 2016 was due to his refusal to perform medically suitable modified duties offered by the employer. The panel was not able to make this finding.
The panel finds, on a balance of probabilities, that the worker sustained a loss of earning capacity after May 19, 2016 due to his medical condition. The panel reviewed the medical information on the worker's file on and around May 19, 2016 and found that the evidence establishes that he was not medically able to return to his duties.
The panel notes that there was a concern regarding the side effects of certain medication. This is referenced in the WCB Plastic Surgery consultant's memo dated August 10, 2016 about a telephone conversation with the worker's treating physician. The consultant indicated that:
It was discussed that the workplace is able to accommodate sedentary-type one handed duties with the left hand, which do not appear to be physically contraindicated once the side effects from the medication wear off.
Information on the file indicates that the worker was experiencing multiple difficulties due to the injury and the medications prescribed for the injury. The panel is satisfied that the effect of the injury and the side effects of the medications was to render the worker medically unable to perform modified duties at that time. While the worker did leave work shortly before he started his medications, the panel accepts the worker's evidence that he had been suffering increased pain from his injury which led him to leave work, see his doctor and receive the prescribed second medication for his worsening condition. The panel also notes there was no evidence indicating that the worker was functional enough to return to work.
The employer's appeal is dismissed.
Panel Members
A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 1st day of December, 2017