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 for the period May 9, 2018 to May 24, 2018. A file review was held on April 17, 2019 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period May 9, 2018 to May 24, 2018.

Decision

The worker is entitled to wage loss benefits for the period May 9, 2018 to May 24, 2018.

Background

On April 26, 2018, the worker, a welder, injured his left thumb when a chisel he was holding slipped and his left thumb was struck by a hammer. The worker was seen at a local emergency department where x-rays were done and he was diagnosed with a comminuted fracture of the distal phalanx of his left thumb. The emergency department physician noted that the worker could return to work with restrictions of not using his left hand.

The worker was off work for a vacation from April 27, 2018 to May 2, 2018 and returned to modified duties on May 3, 2018. On May 7, 2018, the worker returned to the emergency department due to increased pain. The worker was provided with medication and a referral was made to a plastic surgeon with an appointment set for May 9, 2018.

At the worker's appointment with the plastic surgeon on May 9, 2018, it was noted that "his fracture was in good position" but that he was "still early in his postinjury (sic) state". The surgeon recommended that the worker remain off work and completed a Physical Capabilities Worksheet, noting the worker should be reevaluated in three weeks. On May 24, 2018, at the worker's follow-up appointment, the plastic surgeon noted that the worker was still having ongoing issues with pain and discomfort but that "…the bone fragments appear to be in good position with minimal displacement." It was further noted that the worker had "…some slight decreased range of motion as a result of splinting protocols." The surgeon recommended the worker remain off work for an additional two weeks, after which, the surgeon believed he could return to modified duties. The surgeon completed another Physical Capabilities Worksheet at that time.

On May 24, 2018, the employer contacted the worker's WCB case manager to advise her that the worker had provided them with a Physical Capabilities Worksheet. The employer further advised that they had offered the worker light duties, with no use of his left hand, but the worker refused the duties. After a discussion with the worker, the WCB sent the worker a letter on May 24, 2018 advising that, as the one handed duties offered by his employer were deemed to be appropriate and it was determined he was capable of working those duties, he was not entitled to wage loss benefits from May 9, 2018 onward.

At an initial occupational therapy appointment on May 28, 2018, the therapist assessed the worker and diagnosed him with a fracture of his left distal phalanx. Modified duties consisting of light duties of less than one pound were recommended. On June 7, 2018, the worker advised the WCB that he would be returning to work on modified duties on June 11, 2018. At a further follow-up appointment with his treating plastic surgeon on June 28, 2018, it was noted the worker could return to full duties in approximately two weeks' time.

On July 5, 2018, the WCB advised the worker that a further review of his claim had been completed, including the updated medical information received from his healthcare providers, and the May 24, 2018 decision that he was not entitled to wage loss benefits beyond May 9, 2018 remained. On August 21, 2018, a WCB rehabilitation specialist conducted a worksite inspection of the worker's workstation. The job duties provided by the employer were also reviewed and on September 5, 2018, the WCB rehabilitation specialist provided the opinion that:

Based on the worker's physical restrictions at that time of "no use of left hand", the available modified right-handed duties provided by the employer, and the workers (sic) ability to return to work from May 3, 2018 to May 8, 2018 it can be concluded that the provided modified duties were appropriate for the physical restrictions at that time.

The worker was advised on September 5, 2018 that, as the modified duties offered by his employer were deemed appropriate after the WCB rehabilitation specialist's assessment and the worker was able to return to work from May 3, 2018 to May 8, 2018, the decisions of May 24, 2018 and July 5, 2018 that he was not entitled to wage loss benefits from May 9, 2018 remained unchanged.

The worker requested reconsideration of the WCB's decisions to Review Office on September 14, 2018. The worker noted on his request that his treating healthcare providers recommended that he remain off work in order to heal and that the duties he returned to were not one handed duties.

On November 9, 2018, Review Office determined that the worker was entitled to wage loss benefits to May 24, 2018. Review Office found that the physical capabilities form completed by the worker's treating plastic surgeon on May 9, 2018 noted that the worker was not cleared to perform the modified duties provided by the employer at that time of typing or photocopying. Review Office accepted and placed weight on the opinion of the treating plastic surgeon that the worker was totally disabled and should remain off work. Review Office accepted that the employer had a well-established return to work program but also noted that as the worker was still in an acute stage of his recovery and dealing with severe pain, it was not reasonable for the worker to remain at work. Review Office further noted that the worker's follow-up appointment with the treating plastic surgeon on May 24, 2018 indicated the worker had some pain on palpation and a reduced range of motion but did not support that the worker was totally disabled. As such, Review Office determined that the worker would have been capable of modified duties at that time and therefore, was not entitled to wage loss benefits after May 24, 2018.

The employer filed an appeal with the Appeal Commission on November 14, 2018. A file review was arranged.

Reasons

Applicable Legislation and Policy

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.

Payment of wage loss benefits

4(2) Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of 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.

Worker to co-operate and mitigate

22(1) Every worker must

…

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Policy #44.10.30.60 Co-operation and Mitigation in Recovery

POLICY

The Act requires that workers take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury. This is also known as a duty to mitigate the negative effects of a workplace injury. A worker can mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker's recovery and return to work. …

B. RETURN TO WORK AND OTHER PROGRAMS

An injured worker is required to participate reasonably in their return to work, rehabilitation, disability management and other programs. The worker's responsibilities include the following:

a) Reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker’s recovery…

Employer's Position

The employer made the following comments as part of their written submission for the panel's consideration:

[The worker] injured his left hand thumb on April 26, 2018.…

He then returned to work on modified duties (these included right handed duties where he was either typing or printing/laminating documents) from May 3- May 8, 2018. On May 9, 2018 he stopped coming to work and brought in a note stating that he was unable to do anything for 3 weeks (I don't see any medical evidence explaining why he is unable to work one handed duties for 3 weeks in his claim file) and then another note that stated he would require an additional 2 weeks (again no medical evidence explaining why he is unable to work one handed duties for an additional 2 weeks in his claim file).

…

[The worker] was instructed by [the employer's] Human Resources Advisor, [name] to notify her as soon as [the worker] was having any discomfort or pain when doing any of the light duty jobs that were given to him. [The worker] did not notify [the human resources advisor] at any point during the four days that he worked right handed light office duties that there was any pain or discomfort. If she would have been notified that he was in pain he would have been given another light duty job to ensure he was not in pain or been given breaks where [the worker] could go lay down and rest if he needed to (which [the worker] was told he could do in the Security office if he needed to at any time by [the human resources advisor]). [The worker] was prescribed medication for his pain and was still able to drive to work and to/from his doctor's appointments which would require him to use both hands which he did with ease but he was unable to continue working one handed duties and was required to be off work for five weeks for a thumb injury?...

The employer requested reconsideration of the decision made by Review Office that the worker was entitled to wage loss benefits from May 9, 2018 to May 24, 2018 as they felt the worker could have performed modified duties during that period of time.

Worker's Position

The worker did not provide a submission to the appeal panel.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period commencing May 9, 2018 to May 24, 2018. For the reasons outlined in this decision, it is the panel's finding that the worker was entitled to benefits for that period.

While the panel acknowledges the employer was able to accommodate the worker with modified duties during the period in question, it is the panel's finding, based on the balance of probabilities, that the worker was medically unfit to attend work in any capacity within that time period.

In coming to this conclusion, the panel relies on the following information contained in the file:

• The worker had an accepted claim for a left thumb injury he sustained on April 26, 2018. The worker was absent from work from April 27, 2018 to May 2, 2018 due to a previously scheduled leave of absence and returned to work on May 3, 2018 in a modified duty capacity which he continued until May 9, 2018. 

• The worker attended a local emergency department in the morning of May 7, 2018 because he had run out of his prescribed medication the night before and the worker stated he was in pain as a result. The attending emergency department doctor provided the worker enough pain medication to last him until he saw a plastic surgeon two days later on May 9, 2018. 

• The plastic surgeon who examined the worker on May 9, 2018 provided a report that stated, in part, the following: "I had the pleasure of seeing [the worker] back on May 9, 2018. Evaluation at that time showed that his fracture was in good position. He was still early in his postinjury (sic) state, and he required Occupational Therapy. This was arranged. He will not be able to return to work until further notice." The plastic surgeon also completed the employer's physical capacities worksheet at that time which confirmed the worker was unable to return to work in any capacity for three weeks. It is the panel's understanding from the file that the worker was prescribed additional medication at that time to help with pain management. 

• In a WCB file note dated May 9, 2018 documenting a discussion between the worker and the WCB Case Manager, the worker advised the Case Manager that "… he would call me back because his thumb was throbbing so much he could no longer continue the conversation. He will call me back." 

• Another WCB file note dated May 15, 2018 documented that the worker advised the WCB that on "Tuesday, May 8, 2018 due to pain, lack of sleep and medication he was found passed out under a desk at work. He has been off work since then." It is also documented in the same file note that the worker stated "At the time he passed out at work he was doing one handed duties. The surgeon advised him to remain totally off work and not even do such things as photocopying. No modified duties." 

• While the employer was unable to confirm that the worker was found "…passed out under a desk…" as stated by the worker, they did confirm in a conversation with the WCB case manager on June 5, 2018 that the worker was "…tired, possibly drowsy from the medication but she wasn't completely sure" and further that the worker had advised the employer that "…he took a nap in the room, the janitor came in flicked on the light switched (sic) and was startled to see someone in there. She was not aware of him sleeping under a desk." The panel finds that, regardless of which description of the event is more accurate, as a result of his workplace injury, the worker ended up needing to lie down in a room during his work shift. It is the panel's position that the requirement to lie down during his shift (or pass out) confirms that the worker should not have been attending work at that time. 

As a result of the foregoing, it is the panel's determination that the worker was unable to attend work from May 9, 2018 to May 24, 2018 and, as such, the employer's appeal is denied.

Panel Members

M.L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 21st day of May, 2019