The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she was not entitled to wage loss benefits for the period December 19, 2015 to January 23, 2016 and that she has been overpaid. A hearing was held on January 18, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period December 19, 2015 to January 23, 2016; and

Whether or not the worker has been overpaid.

Decision

That the worker is not entitled to wage loss benefits for the period December 19, 2015 to January 23, 2016; and

That the worker has been overpaid.

Background

The worker developed dermatitis on both of her hands from wearing gloves at work. She filed a claim with the WCB on June 28, 2013, which claim was accepted and wage loss and medical aid benefits were paid.

On November 18, 2013, the worker was seen by a dermatologist who reported that the "clinical impression is that of hands dermatitis and irritant/contact dermatitis is a distinct possibility." The dermatologist referred the worker to a specialist for allergy testing. On December 3, 2013, the specialist noted:

It appears that it is the [brand name cream] and [cleanser] that [worker] is allergic to. She was quite convinced that it was the nitrile gloves but she did not react to the gloves themselves. It is possible that the nitrile gloves produced a more occlusive environment and allowed the chemicals from the [brand name] products to penetrate her skin to a greater degree than the vinyl gloves. I have advised [worker] to stay off work for 4 weeks to allow her skin to heal. She will use [product name] twice a day and [protectant cream] as often as needed. Once she is back to work she will have to avoid the [brand name] cream and cleanser and I would recommend [product name] cleanser and [protectant cream] instead. She will wear cotton gloves inside the nitrile gloves for 6 months and if the eczema remains controlled then she should be able to wear the nitrile gloves without the cotton gloves inside. I will see [worker] again if she continues to have problems.

Over the course of the claim, the worker missed time from work when her dermatitis condition flared up. The worker was to start a return to work program on December 18, 2015, but only completed a portion of her shift that day before she was called away on a family matter. The worker missed further time from work starting December 19, 2015 and the WCB continued to pay wage loss benefits.

On February 29, 2016, the WCB advised the worker that there had been an overpayment of benefits in respect of January 20 and 21, 2016, as she had received full wage loss benefits while she was on paid vacation on those dates.

On March 24, 2016, the WCB advised the worker that information on file indicated she was able to return to work on December 18, 2015. As suitable duties were available and there was no medical information on file to support evidence of disability arising from her compensable injury beyond December 17, 2015, the worker was not entitled to wage loss benefits for time missed from the return to work program effective December 18, 2015.

On April 21, 2016, the worker was advised that it had been determined that wage loss benefits had been paid for time loss from work for reasons unrelated to her claim from December 19, 2015 through January 23, 2016, and an overpayment had therefore occurred.

On July 22, 2016, a union representative, acting on the worker's behalf, requested that Review Office reconsider the WCB's decision, as it was felt that the worker's compensable injury prevented her from working for the period of December 19, 2015 to January 23, 2016.

On November 9, 2016, Review Office found that the worker did not have a loss of earning capacity from December 19, 2015 to January 23, 2016 in relation to her compensable hand injuries.

Review Office found that the worker left work on December 18, 2015 due to non-compensable reasons. It was not until she was away from work and cleaning her son's apartment while wearing gloves that she noticed "her hands immediately reacted becoming red with broken skin." The worker was also having breathing difficulties, and was ill with the flu and a bronchial infection, which were non-compensable. Review Office was unable to relate the need for time loss for the worker's acute hand and respiratory complications to her compensable injury.

Review Office concluded that the worker did not have a loss of earning capacity from December 19, 2015 to January 23, 2016, as her acute dermatitis symptoms were not caused by her work environment. As the worker had received wage loss benefits for that period of time, she had been overpaid.

On April 20, 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.

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.

Worker's Position

The worker was self-represented. The worker was accompanied by a counsellor, and participated in the hearing by teleconference. The worker made a presentation and responded to questions from the panel.

The worker's position was that she was unable to work from December 19, 2015 to January 23, 2016 because of her compensable hand condition; that she was therefore entitled to full wage loss benefits for that period of time, and had not been overpaid.

The worker stated that her hands had not healed when she returned to work on December 18, 2015. She noted that there had been a fire in their house in early December, and they were living in a hotel at the time. She said she was under a lot of stress, which can trigger a reaction. She went to work as a form of respite, to get away from the hotel, adding that she probably should not have gone to work. In response to a question from the panel, the worker noted that while her doctor had written on December 8, 2015 that she could return to work on December 18, 2015, "things can happen between there and then." She said that by December 19, 2015, her hands had become worse; they were not in proper shape and she would not have been allowed to work.

The worker acknowledged that she helped her son by cleaning his apartment while she was off work, and used gloves to do so, but noted that her hands were already open at that time.

The worker emphasized that she has a chronic condition. She said that it does not make sense to suggest that it would be chronic one month, and not the next, or that it would disappear in December 2015 and not be a problem. She reiterated that her hands were not good in December, and all of the stress at that time probably made them worse.

The worker recalled that on December 18, 2015, she spent an hour attending to a patient using gloves, prior to being called away on an unrelated family matter.

The worker stated that while the WCB had said that her loss of time at work in December 2015 was due to a respiratory condition and not her hands, that was not the case. She said she had no respiratory issues on December 18, 2015. She said that she subsequently went to the emergency department because she was coughing a lot. However, chest x-rays taken December 26, 2015 and January 27, 2016 showed that her lungs were clear. The worker noted that she had chronic bronchitis a lot, but it had never prevented her from going to work.

The worker submitted that in her job, she relies on objective, not subjective data, and that the objective data supports her position. She noted that photographs show that her hands were not healed in December 2015, and she could not have worked for that reason. The chest x-rays further showed that her lungs were clear and that respiratory issues were not the cause of her loss of time from work.

The worker submitted that in any event, it did not matter if there were other problems; that as long as she had open sores on her hands, she was not allowed to work.

In conclusion, the worker stated that the bottom line is that she has a chronic condition, and cannot be at work with hands that are open. It was submitted that she could have worked in December and January if her hands had been okay, but they were not. The only reason she was not at work between December 19, 2015 and January 23, 2016 was because of the condition of her hands and her compensable hand injury, and she was therefore entitled to wage loss benefits for that period of time.

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 December 19, 2015 to January 23, 2016.

For the worker's appeal on this issue to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity in the period from December 19, 2015 to January 23, 2016 as a result of her 2013 compensable injury. The panel is unable to make that finding, for the reasons that follow.

The worker argued that her hands had not healed and she ought not to have been at work during that period of time. The panel notes that the worker had been cleared to return to work by her treating physician who provided a medical note dated December 8, 2015 which stated that she was ready to resume duties at work as from December 18, 2015 and specifically indicated "Normal duties without any restrictions." Information on file indicates that the worker provided that note to the employer and the case manager at a return to work meeting on December 16, 2015, just two days prior to her scheduled return to work date.

The worker's evidence at the hearing was that when she returned to work on December 18, 2015, she worked with a patient for an hour, with gloves on, before being called away on an unrelated family matter. The worker returned to work later that shift, but was told by the charge nurse that she should go and be with her family. There is no indication that there was any issue with respect to the worker's hands on December 18, 2015.

The worker did not return to work the following day. Based on the information before us, the panel is satisfied that the worker's absence from work starting December 19, 2015 was not due to her compensable injury, but rather to other issues, in particular, respiratory or lung difficulties or illness, which were unrelated to the worker's compensable injury. The panel notes that contemporaneous information on file shows that the worker was already complaining of coughing and breathing problems on December 18, 2015. A memorandum to file dated December 21, 2015 shows that the worker called the WCB Claims Service Centre that day, and advised that she returned to work on December 18, 2015, and started to "not feel 'right' after she got into work. She was getting worse and worse during her shift and she was having difficulties breathing." A second memorandum to file indicates that the worker also spoke with the case manager that day, who recorded that they had discussed that the worker "Went to work on December 18. Was having difficulty breathing and was sent home. Sought medical treatment and prescribed antibiotics…" There was no indication that the worker's hand condition had flared up or that her hands were causing her any issues at that time.

Information on file also shows that the worker attended the emergency room on several occasions in December and January due to lung or respiratory issues. The panel notes that in a report from the emergency department dated December 26, 2015, it is noted that the worker was also complaining of an itchy dry rash to the palms of her hands and indicated that there were no open lesions and no superinfection. It is the panel's understanding that concerns with respect to the worker's hands relate to open sores in particular, and that the condition of her hands as outlined in the report, which indicated there were no open lesions, would not have prevented her from working.

In a memorandum to file dated January 15, 2016, it was noted that the worker had attended the emergency department due to breathing difficulties on January 12, 2016, at which time the doctor had wanted to admit her, and again on January 13, 2016, and that she was diagnosed with a collapsed lung and pneumonia. In response to a question from the panel, the worker agreed that is was fair to say that she had a collapsed lung on January 15, 2016. In the panel's view, the worker's numerous visits to the emergency department and the ordering of chest x-rays on two separate occasions support that her bronchial or respiratory issues were significant enough for her to be off work.

The evidence indicates that the worker experienced a flare-up of her hand condition towards the latter part of December 2015 when she was cleaning her son's apartment. In a voicemail message on December 30, 2015, the worker reported "Lung Infection. Used blue gloves while cleaning her son's apartment/ Hands broke out, blistered." In an email from the employer dated January 28, 2016, it was also indicated, in part, that the worker had called in sick with the flu on December 19 and 20, 2015, and that they had received a voicemail from the worker subsequent to that stating that she "had been off sick with a bronchial infection. She had also been cleaning her son's apartment and wearing blue gloves and her hands immediately reacted becoming red with broken skin." The panel notes that any such flare-up as a result of the worker cleaning her son's apartment was not work-related.

In arriving at our decision, the panel has also considered photographs of the worker's hands which are on file, but is unable to find that those photographs substantiate the worker's position that her absence from work and loss of earning capacity during this period of time was due to her compensable injury.

In conclusion, based on our review and consideration of the evidence which is before us, on file and as presented at the hearing, and the submissions of the worker, the panel is satisfied, on a balance of probabilities, that the worker's loss of earning capacity from December 19, 2015 to January 23, 2016 was not related to her compensable injury.

The worker's appeal of this issue is dismissed.

Issue 2: Whether or not the worker has been overpaid.

There is no dispute that the worker received wage loss benefits from the WCB for the period of time from December 19, 2015 to January 23, 2016. Given the panel's decision on Issue 1 above, that the worker was not entitled to wage loss benefits for that period of time, the panel finds that the worker has been overpaid.

The worker's appeal of this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
C. Devlin, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 16th day of March, 2018