The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The employer is appealing the decision made by the Workers Compensation Board ("WCB") that the worker was entitled to wage loss benefits after August 25, 2014. A hearing was held on February 14, 2018 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after August 25, 2014.

Decision

That the worker is entitled to wage loss benefits after August 25, 2014.

Background

On August 25, 2014, a "flight" (auger) fell off a table and landed onto the worker's left foot. On the same day of the accident, the worker was seen at two medical facilities. The treating physician at the first facility completed a Physical Capabilities Form indicating the worker could return to regular duties on September 1, 2014. At the second medical facility, the worker underwent surgery to his left foot after being diagnosed with the following conditions:

1. Open fracture and nailbed injury left first toe distal phalanx. 

2. Fracture second toe middle phalanx 

3. Fracture third toe middle phalanx.

Regarding postoperative plans, the operative report noted that the worker would receive 48 hours of antibiotics. The worker would be non-weight bearing on his left lower extremity and should keep his left foot elevated as much as possible. In two weeks' time he would be seen at the clinic to have his dressings changed and if his incision looked good, his stitches could come out.

On September 3, 2014, the employer representative advised the WCB that he had the Physical Capabilities Form dated August 25, 2014 and that he had attended the worker's home the day before to offer the worker modified duties. The worker advised that he was not capable of working or driving. The employer advised the WCB that he offered to pick up the worker and bring him to work. The worker stated to the employer he was going to see his doctor on September 9 and would wait to see what he said.

In a Doctor's First Report dated September 3, 2014, the treating physician reported that the worker had swelling, left foot numbness at times, throbbing but no infection. He was able to move his toes but had pain strength 2/5. He stated the worker was not capable of alternate or modified work.

On September 9, 2014, a WCB adjudicator called the treating physician to ascertain why the worker was unable to work sedentary duties that were being offered by the employer which enabled the worker to keep his foot up as needed. The treating physician returned the call to advise that it took 20 minutes to take off the foot bandage. She said a pin was hanging out. She noted that the worker had throbbing pain and she did not suggest modified duties at this time.

A doctor's progress report dated September 12, 2014 indicated that the worker complained of left foot pain while walking on it for a little while. The examination findings showed that the worker was "able to put pressure on foot, walks with limp and in pain, bandage removed swelling on foot less no color change pins in 1.2.3. toes intact strength 3/5 and can't move 1/2/3 toe." The physician noted that the worker was capable of alternate/modified duties with restrictions for a four week period. The physician stated in her report that she had an argument with the worker who indicated that he was confused as his treating surgeon told him that he should not return to work.

On September 18, 2014, a WCB orthopedic consultant reviewed the file to confirm the diagnosis related to the workplace injury and to comment on whether the worker was capable of performing work duties. The consultant stated:

The workplace injury was a crush injury to the left foot with open fracture of the distal phalanx of the great toe and closed fractures of the middle phalanges of the second and third toes.

In a crush injury causing toe fractures, there are considerations of importance re healing of crushed soft tissues as well as maintaining position of the pinned fractures. Typically, the pins are left protruding (for later removal) and care must be taken to avoid bumping into objects and displacing the pins. Elevation much of the time is required to control soft tissue swelling. Weight bearing on the hind foot is possible for short periods of walking. The amount of foot care required in this situation would seem to make it necessary to stay off work until the attending surgeon is satisfied with the progress of healing. I would advise against work, even sedentary, at this time.

Temporary total disability is related to the degree of crushing and fracturing of the forefoot. This should be reviewed upon the next report from the attending surgeon.

In a letter dated September 19, 2014, the WCB wrote the orthopedic surgeon asking for his input as to the worker's ability to participate in modified duties.

On September 19, 2014, an occupational health physician reported that the worker was not ready for alternative work. He said the worker had an antalgic gait, the k-wires had not been removed yet and they were protruding from the end of his toes. He said the throbbing pain was best managed by having the worker's foot raised. He said commuting to work was a challenge at this point.

The orthopedic surgeon provided the WCB with up-dates regarding the worker's foot condition on September 23, 2014 and October 9 and 23, 2014. In his last report, the surgeon noted that they took out the pins in the first toe and the overall alignment appeared to be fine. The fracture was obviously not fully healed.

On October 30, 2014, the WCB orthopedic consultant stated:

I advise against return to work in any capacity until the next report from the attending orthopedic specialist, scheduled after a 4 week interval. The worker should be considered totally disabled at this time. A post-operative infection is requiring antibiotics and foot dressings…"

In a report for an examination on November 20, 2014, the orthopedic surgeon stated that he gave the worker an off work note until mid-January because with his non-healed distal phalanx fracture, the more he was on it the higher the chance that he will have trouble with it healing up.

On December 3, 2014, the WCB orthopedic consultant stated, in part: Total disability is considered to continue until next orthopedic review in mid-January, 2015. The O/S noted the great toe to be raw, but clean, when last examined. X-ray showed no evidence of fracture healing as yet. Given the time from injury, this would be defined as delayed union. Under such circumstances, I would advise a similar patient under my care to stay away from work in order to avoid further infection or re-injury."

In a report dated December 16, 2014, the orthopedic surgeon reported that the worker was advised to continue with his gym for range of motion and walking exercises and that he gave a note to be off work until January 12, 2015.

On January 8, 2015, the WCB orthopedic specialist commented that the employer "can offer modified duties, indoors, and daily transportation to and from work. This however, depends upon footwear. It is probable that there continues to be some degree of swelling of the forefoot which might make it difficult for him to use work boots (and note that the original work boot was damaged in the accident). Also, there is no information as to his capacity to use casual footwear without risk of the shoe being too tight and thereby resulting in frictional damage to the injured area."

On January 16, 2015, the orthopedic surgeon noted that the worker was not 100% ready to return to his regular duties. He said the worker can try steel toed shoes if that gave him more comfort, but he has to avoid being on his feet for prolonged periods of time. He cannot stand for prolonged periods of time and he cannot crouch as this would put a lot of extension stress through the tips of his toes and that would cause him difficulty. He will also have troubles with climbing. On February 26, 2015, the specialist reported that the worker could return to full duties starting March 2, 2015.

In a submission to Review Office dated March 14, 2015, the employer's representative stated they were appealing the WCB's decision to pay wage loss on the claim as they believed that the worker failed to mitigate the effects of his injury by failing to participate in the available modified duties that were offered to him.

The employer noted that the worker was offered sedentary duties (office work) from the first day he was injured on August 25, 2014. The duties would not require the worker to wear work boots and he could have worn any type of comfortable foot wear. It was felt that getting to and from work was not a barrier to participating in modified duties. It was believed that the worker was attending a gym and working out was more physically taxing than participating in modified duties. The employer believed that the worker was clearly in breach of the WCB's mitigation policy and that his WCB wage loss benefits should have been suspended.

On April 11, 2016, Review Office determined that there was entitlement to wage loss benefits beyond August 25, 2014. Even though the employer had modified duties/sedentary work available and transportation to and from work, Review Office accepted the medical information on file that working in any capacity was not appropriate considering the compensable injury. Review Office noted that the worker had wires protruding from his foot which compromised his ability to ambulate. Once he was able to begin an active physical rehabilitation, and with the support of his physician, the worker was authorized to attend a gym facility to enhance his recovery. This, in and of itself, did not equate to the worker being medically fit to work.

On April 13, 2016, the employer appealed Review Office's decision to the Appeal Commission. An oral hearing was arranged for February 14, 2018.

Reasons

Applicable Legislation

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 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 worker has an accepted claim for a workplace injury on August 25, 2014. The employer is appealing the WCB decision that the worker is entitled to benefits after August 25, 2014.

Employer's Position

The employer was represented by its Quality Coordinator and accompanied by its EHS and Training Coordinator.

The employer's representative advised:

So obviously we’re not disputing that the incident occurred, or that the worker was injured, that is not our dispute at all. It simply is the wage loss benefits and the duty to mitigate. We believe that the claimant failed to mitigate the effects of his injury, by failing to participate in available modified duties offered to him by us. As well, we further believe that the evidence indicates that the claimant was physically capable of safely participating in modified duties.

The worker's representative advised that there were multiple dates on which the wage loss benefits could have ceased. He noted that the first physician the worker saw gave him one week off with a return to regular duties on September 1st. He noted this authorization was for regular duties.

The employer's representative advised that he attended the worker's home after he was discharged from hospital. He noted that the worker was able to walk to the door himself at that time, which was approximately four or five days after the incident.

He advised that he spoke with the worker on September 3, 2014, at which time he offered modified duties. He offered them again on September 4. He said that he tried to organize a ride to the workplace if the worker didn’t have his own vehicle or public transportation.

He said that the employer had set up a return to work plan but the worker refused to return for modified duties. The worker proceeded to see another doctor. The employer representative noted that the worker attended three or four different doctors throughout the period.

The employer representative advised that the modified duties were not out on the shop floor, but were in an internal office. He said it was a clean atmosphere and the worker would be able to sit down and put his foot up. He said the employer has a good history of providing modified duties that are meaningful and fulfill a worker's duty to mitigate.

He noted that on September 23, 2014, a different WCB staff person explained to the worker that medical information supports a return to work at sedentary duties. He noted that the worker was told wage loss benefits would not be payable if he didn’t go to work. The worker acknowledged this but indicated that he preferred to wait. The employer representative said that a third physician then took him off work.

The employer representative advised that as of October 3, 2014, the WCB determined that the worker was considered totally disabled. Then as of October 20 or 23, 2014 a WCB staff person advised that a medical report indicated that the worker could put weight on his heel but was unable to come in to work and perform modified duties. The employer representative said that modified duties were offered again, but declined. He noted that the pins had been removed from the worker's foot.

The employer representative advised that around October 30, the employer was advised that the worker's foot became infected. The employer representative stated that the worker could be accommodated, he was not required to wear a boot and could wear other footwear. He said that all the modified duties would be performed in a clean office environment.

The employer representative advised:

On December 9, 2014, he is still considered totally disabled yet now he is recommended to go to the gym for gait training. It wasn’t even a half and half, like a 50/50 split, of come perform modified duties during the day it was, you know and then go to the gym for gait training in the afternoon. It was still completely disabled.

He questioned why the worker can go into a non-sterile area like a gym but not a clean office. He noted that as of December 16, 2014, a physician stated that the worker could return to work for modified duties, but he refused.

The employer representative noted as of January 12, 2015 the worker did return to work. The worker advised that he could return to his regular duties immediately. However he was not able to commence until he had medical clearance.

The employer representative submitted that:

I would find it unreasonable on the WCB’s behalf to not realize that there is his part to mitigate the claim, and if you are capable of doing one you should be capable of doing the other. If he can go to the gym and walk around and do gait training, he can without a doubt sit in a chair and take training or something along those lines where you can put your foot up, you’re not moving around.

In answer to a question about the date that the employer feels the worker should have returned to work to modified duties, the employer's representative advised in or around September 23. He explained that while the surgeon provided a later date, there were 3 physicians who supported an earlier date.

Worker's Position

The worker did not participate in the hearing.

Analysis

The employer is appealing the WCB decision that the worker is entitled to wage loss benefits after August 25, 2014. The employer representative explained that the employer had no concern about the first days of the claim.

For the employer's appeal to be approved, the panel must find that the worker did not sustain a loss of earning capacity after August 25, 2014 as a result of his accepted claim. In other words the panel must find that that the worker was medically able to perform modified duties on or after that date. 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 August 25, 2014 and continuing until his return to work in January 2015.

In considering this appeal, the panel has taken into account the significant injury sustained by the worker and the related medical information. The panel notes that while at work on August 25, 2014, the worker injured his left foot. The worker was welding an auger blade when it fell off the table striking the dorsal side of his left foot just behind the steel toe protection of his work boot. The worker underwent an open reduction internal fixation of his left big toe with a closed reduction with percutaneous (through skin and protruding) pinning and internal fixation being completed on the second and third toes of the left foot.

The panel notes that the medical management of this claim involved various physicians who had different opinions on the worker's ability to return to work. The panel attaches weight to the opinion of the orthopedic surgeon who performed the surgery on the worker's left foot as well as the opinion of the WCB orthopedic consultant.

The orthopedic surgeon provided several notes including:

• Physical Capabilities Analysis dated September 23, 2014 which indicated that the worker was not capable of light or modified duties. The surgeon noted that return to work date was unknown, there was concern regarding infection and the worker was to stay off the foot.

• Outpatient Report dictated December 16, 2014 which indicated, in part, that x-rays show healing of the second and third proximal phalanx, and very little healing in the first toe distal phalanx… I have advised him to keep continuing with his gym for range of motion and walking exercises. He has an off work note until January 12, 2015.

• Physical Capabilities Analysis dated January 9, 2015, based on an examination of December 16, 2014 which indicated "continues to improve, fractures not fully healed yet, can go back for modified duties - no prolonged standing/walking/crawling/ladders"

The WCB orthopedic consultant provided opinions dated October 30, 2014 and December 3, 2014 which indicated, in part:

October 30, 2014:

1. I advise against return to work in any capacity until the next report from the attending orthopedic specialist, scheduled after a 4 week interval.

2. The worker should be considered totally disabled at this time. A post operative infection is requiring antibiotics and foot dressings…

December 3, 2014:

2. Total disability is considered to continue until next orthopaedic review in mid January 2015. The O/S noted the great toe to be raw, but clean, when last examined. X-ray showed no evidence of fracture healing as yet. Given the time from injury, this would be defined as delayed union. 

3. Under such circumstances, I would advise a similar patient under my care to stay away from work in order to avoid further infection or re-injury.

The panel also notes that an occupational health physician provided an opinion dated September 19, 2014 indicating that the worker was not fit to return to work at that time.

After a careful review of the medical information, the panel finds that it was appropriate for the worker to decline the employer's various offers of modified duties. The panel appreciates that the employer made many attempts to engage the worker and to achieve an early return to work to modified duties. The panel accepts that the employer's offers were made with a bona fide interest in the worker's recovery. The employer representative identified numerous dates at which it would have been reasonable for the worker to return to work to modified duties. The panel finds that, as noted above, the medical information supported the worker's absence from work for the period of time the worker was absent.

The employer's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 5th day of April, 2018