The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to full wage loss benefits after February 19, 2016 to September 21, 2016. A hearing was held on July 10, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits after February 19, 2016 to September 21, 2016.

Decision

The worker is not entitled to full wage loss benefits after February 19, 2016 to September 21, 2016.

Background

The worker reported to the WCB on June 9, 2015, that she injured her right foot and ankle in a workplace incident on June 3, 2015 she described as:

I stood up from a table to answer the client/customer phone and I stepped to the left to go around the table. While I was walking I got caught up in the chairs and I fell over. My right foot got caught and the next thing I knew I hit the ground.

This caused me to break my right tibia and fibula (high ankle).

The worker was taken by ambulance to a local hospital where she underwent an open reduction internal fixation surgery on June 4, 2015. The worker's claim was accepted by the WCB on June 11, 2015 and the payment of wage loss and other benefits started.

At a call-in examination with the WCB on January 7, 2016, the WCB medical advisor provided the following recommended restrictions, to be reviewed after three months:

a. No standing or walking more than 15 minutes. 

b. No prolonged sitting without ability to get up and move around. 

c. No repetitive kneeling, squatting or crawling 

d. No lifting and carrying more than 20 lbs 

e. Avoidance of trauma to the right lower limb by precautions against altercations with the public

On January 29, 2016, the WCB advised the employer of the worker's temporary restrictions along with the recommended gradual return to work schedule of:

2 hours per day - 1 week 

4 hours per day - 1 week 

6 hours per day - 1 week 

Return to full 8 hours per day.

The WCB confirmed with the worker that she would return to work, with the temporary restrictions in place and on the gradual return to work schedule set out on February 15, 2016. On February 21, 2016, the worker advised the WCB that she would not be continuing with the return to work plan as set out in the letter dated February 15, 2016. The worker provided the WCB with a sick note from her family physician for the period of February 19, 2016 to June 17, 2016.

On March 4, 2016, the WCB advised the worker that wage loss benefits would be paid up to and including March 4, 2016, based on the return to work schedule set out in their February 15, 2016 letter. The WCB advised the worker that the medical evidence on her claim did not support that she was totally disabled from work. The medical evidence from the orthopedic surgeon and the clinical psychologist who treated the worker supported that she was capable of working within the restrictions noted and based on the graduated return to work plan.

At the request of the WCB, an assessment by the WCB's Pain Management Unit was arranged for the worker on April 5, 2016. The resulting Summary from the Pain Management Unit assessment, dated May 18, 2016, noted, in part:

There are no psychological treatment recommendations from the Pain Management Unit in relation to the compensable injury. As well, based on the PMU Assessment and information on file, there do not appear to be any physical or psychological barriers related to the compensable injury that would prevent the claimant from participating in the graduated return to work as outlined on file.

On May 27, 2016, the worker was advised by the WCB that based on a review of her claim and the assessment by the Pain Management Unit, there was no change to their earlier decision that she was not entitled to additional wage loss beyond March 4, 2016. The WCB noted that the worker reported to the WCB Pain Management Unit that she was walking several times per day and tracking 10,000 steps per day. The assessment confirmed her ability to function and it was the opinion of the WCB that she was able to return to work to light duties.

The worker's representative requested reconsideration of the WCB's decision to Review Office on July 25, 2016. The worker's representative argued that the WCB's decision was incorrect as the worker was still suffering the effects of the workplace injury and should have been considered totally disabled.

On September 22, 2016, the worker underwent a further surgery to remove the hardware placed during the initial surgery of June 4, 2016.

Review Office advised the worker on October 6, 2016 that it was determined she was entitled to partial wage loss benefits based on a revised graduated return to work schedule. Review Office found that despite the pain the worker was reporting, she still managed to remain active but could not understand how the worker could manage between 6,300 and 10,000 steps in a day but was not able to perform sedentary duties. Review Office also noted that the worker discontinued her return to work after a few days due to her pain and discomfort but did not report any specific difficulties with any of the job duties she was performing. It was noted that a return to work after a significant period of not working could be stressful but that stress would not be a sufficient enough reason to stop a return to work program. Review Office did agree with the worker's representative's concern regarding the short length of time and rapid increase in hours of work per day set out in the return to work plan. Review Office found that given how long the worker had been off work and the pain she was still experiencing related to the workplace incident, a more gradual increase in the hours of work would have been suitable. Review Office determined that the worker was entitled to partial wage loss benefits based on a return to work schedule of two weeks at two hours per day, then two weeks at four hours per day, then two works at six hours per day, ending at eight hours per day.

The worker filed an appeal with the Appeal Commission on December 13, 2017. An oral hearing was held on July 10, 2018.

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.

As the worker was employed by a federal government agency or department at the time of her alleged accident, her claim is adjudicated under the Governmental Employees Compensation Act ("GECA"), which provides that an employee who suffers a personal injury by an accident arising out of and in the course of employment is entitled to compensation.

The GECA defines accident as including "a willful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause."

Pursuant to subsection 4(2)(a) of the GECA, a federal government employee is Manitoba is to receive compensation at the same rate and under the same conditions as a worker covered under the Act.

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) of the Act, 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. She described her accident and injury. She submitted that she is entitled to wage loss benefits for the period from February 19, 2016 to September 21, 2016.

Regarding her accident, the worker advised that:

I was working at the [location] on June 3rd of 2015. As an officer you're available, you have to be available at every moment, and I was having lunch, and sitting down at the table when the phone rang in our lunch room, and I stood up and said, I'll get that. And I stepped around the table and my right foot trapped between some chairs and a table right beside me. And I knew instantly my foot had been trapped, but the momentum carried me right over onto the ground, and all at once I realized what had happened, I had broken my leg quite badly.

She said she was taken to the hospital, and within a day had a plate and nine screws put into her leg. She was told that she had a catastrophic four-point break in her fibula/tibia. She stated that after five days of being in surgery, she came home but felt that something was wrong. She said that when the cast was removed at 16 weeks, the physician advised her that she had been suffering from CRPS due to the injury.

The worker described the CRPS as causing a constant, unrelenting, and mind-numbing pain. She said she couldn't sleep, couldn't eat, and flinched constantly in incredible pain. Emotionally she was very low. She said that at the point that the surgeon determined that the CRPS was aggravating, the decision was made that as soon as the leg was able to be supported without hardware, the plate would be removed. She advised that she attempted a return-to-work in February but within a day she knew she could not continue and remained off work. This resulted in a WCB decision that she was not eligible for benefits after March 4, 2016.

The worker noted that the WCB Review Office decision referred to the worker's comment about walking 10,000 steps a day. She said:

I feel this one particular bit of information is cherry picking, and being blinded to all the other information stating I was unable to return.

She said that the reference to trying to walk 10,000 steps was "more of a hopeful prediction".

She advised that once the hardware was removed in late 2016 it was "as if everything had changed. It was a vice had been removed from my leg. And within a month I was back at work, and within a month of that I was full-time again."

The worker relied upon a May 30, 2018 report by the physiotherapist, who saw her over 37 times during the injury period. The physiotherapist provided a summary of the worker's condition from her first treatment on September 18, 2015 to April 8, 2017.

She also noted a March 18, 2016 report from her treating psychologist. She quoted the following passage from the letter:

in terms of continued involvement in a return-to-work program, although I still feel there are no psychological contradictions, it appears that the pain and functional limitations remain an issue, and unless she experiences some adequate pain relief, a return to work seems unlikely.

The worker also referred to affidavits that were submitted from a colleague, her mother-in-law, her spouse, a friend, and a former colleague.

In answer to a question about her duties on a return to work the worker commented:

It really wouldn't have mattered what they had given me, and what they would have done, it was the fact that I couldn't function, I couldn't think, I couldn't make any decisions based on the pain. … So the whole point is, is that physically I couldn't have done it, emotionally I couldn't have done it, and the pain was just not allowing me to concentrate, to do much other than to worry about not being in pain, and that's really is the way I feel it sums up.

In reply to a question about what her activities were the week after she discontinued the modified duties she confirmed that she was going to physiotherapy 2 or 3 times per week, and receiving massage treatments.

In reply to a question about what made her condition worse when the worker returned to work, she commented that:

I would say just the -- it wasn't making it worse, it was always bad. What increased it, I think, it made it even, just that little level was the stress that I had to put myself under just to get myself there, just to have to manage. Everything was a challenge, every single thing. Every movement was pain. Every step was a shot. So what was different, I couldn't have worked. I was barely managing getting myself around. I was completely dependent on my family and my spouse to manage and help me, just because of the amount of pain I was in.

There was nothing I could have done, no decisions I could made (sic) I feel that would have benefitted my department or my job in any way. I was just managing living like hour-to-hour, to day, to day, and the job was just not in the cards at that point.

That's just the plain fact of it. I was emotionally, mentally overwhelmed by pain. Every step was painful. Whether I was at my job, whether I was standing at the door, there was nothing I could do, there was no decisions I was making, I was just living. I wasn't contributing in any way to anybody and anything, that's the way I felt for that period when I look back on it.

Regarding the impact of CRPS upon the body, the worker said:

It is a whole body. The leg was broken, but the entire body's affected by CRPS. It's an emotional, it's a syndrome that, you know, if somebody tried to explain it to me before I had it, I would be saying like, come on, seriously. But now that I've experienced it, I have a world of empathy for people with chronic pain. It's overwhelming, you can't think.

The worker agreed that it wasn't the duties which were provided on the return to work that caused her inability to work, it was the continuous chronic pain.

Employer's Position

The employer was represented by a manager who was responsible for the worker at the time of the injury, although she was not supervising her directly. She said that other staff reported that they were observing that the worker was:

visibly uncomfortable, flinching, and having difficulty concentrating on tasks, staying at her desk to do what she needed to do.

She noted that the worker left the work and did not come back to work to continue her graduated return-to-work program. She referred to the employer's injury-on-duty leave and sick leave programs. She acknowledged that the work assigned to the worker in the return to work was meaningful work which had to be completed by some staff member. The worker also acknowledged that the work was meaningful.

Regarding the worker's ability to work, the employer representative commented that:

Definitely when I met with [worker], I could see that she was, you know, visibly upset and emotional over the whole situation, so it was not ideal for her to be at work.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits for the period after February 19, 2016 to September 21, 2016. For the worker's appeal to be successful, the panel must find that the worker suffered a loss of earning capacity after February 19, 2016 until September 21, 2016 as a result of her workplace accident. The panel was not able to make this finding.

The panel has reviewed the return to work program, as modified by Review Office and finds the program to be reasonable given the worker's medical condition. The panel notes that Review Office amended the time frame to allow a more gradual return to work. The panel also notes that the worker did not have concerns about specific duties but rather felt she was not medically able to return to work.

Regarding the worker's fitness to return work, the panel reviewed all the medical information on file and attaches weight to the opinions provided by the worker's orthopedic surgeon, who operated on the worker, followed her progress and authorized her return to modified duties. The panel notes:

January 11, 2016 opinion:

Objectively the leg looks quite a bit better to me with less gross evidence of sympathetic dystrophy or complex regional pain syndrome… 

… 

I have not authorized functionally for any return to work for anything other than just more or less sitting with a bit of walking type job.

February 10, 2016 opinion:

Your detailed restrictions and graduated scheduled return to work is certainly a reasonable offering considering that we are now six (6) months post-surgery and radiographic healing of the fracture is occurring, although relatively slowly.

… 

I don’t know all the specific details of her work but this return to work recommendation seems reasonably accommodative so I think it should be pursued.

The panel also attaches significant weight to the April 5, 2016 opinion of the WCB Psychological Advisor, Pain Management Unit. The WCB Psychological Advisor and the WCB Medical Advisor to the Pain Management Unit, interviewed the worker on April 5, 2016. The WCB Psychological Advisor provided the following comments under the Daily Activities heading of her opinion:

…

During the week, the worker sees a sports therapist and a massage therapist, and she does do stretching, and strengthening with a band. She takes their dog for small walks, perhaps three to four times per day. She wear a Fitbit and does 10,000 steps per day. She stated that she does a little house work, but it takes a longtime as she has to pace herself. She stated her wife preps and she does the cooking.

The WCB Psychological Advisor provided the following comments under the Observations and Impressions heading in her opinion:

…

[The worker's] report of pain is very high, but she continues to use active pain management strategies, doing 10,00 steps per day and many activities despite the pain. Given this high level of activity, it does appear that barriers to successful return to work may be related to a significant extent to psychological factors and perhaps to a lesser extent to the physical demands of the job. She did not present with any cognitive difficulties today and did appear to have very good cognitive resources; therefore, it is not anticipated that there would be cognitive issues that would impair her ability to successfully return to work.

As such, it may be useful to have her meet with a psychologist to deal with psychological factors that may be a barrier to return to work. However, the extent to which this counseling would overcome barriers to return to work is unclear and the decision would be at the discretion of Case Management given the worker's current claim status."

Given the above information, the panel finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity for the period February 19, 2016 until September 21, 2016 as a result of her workplace accident.

The worker'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 29th day of August, 2018