Decision #73/19 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to wage loss benefits after September 27, 2018. A hearing was held on June 13, 2019 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after September 27, 2018.
The worker is entitled to wage loss benefits beyond September 27, 2018.
The employer reported to the WCB on September 27, 2018 that the worker injured his little finger on his right hand in an incident at work on September 26, 2018. The employer reported that the worker lost his balance when his foot was caught between stringers of a pallet, fell backward and landed on "…the top of the RT (right) hand and baby finger."
The worker sought medical treatment on September 26, 2018. The treating physician noted the worker had a "painful hand and little finger" as well as swelling at the PIP joint and tenderness over the metacarpals. He referred the worker for an x-ray and recommended the worker remain off work for one week as he had "suspected [a] right little finger fracture."
The worker returned for an x-ray on September 27, 2018, which indicated "[s]oft tissue swelling is present around the PIP joint. No fracture or dislocation is identified." The chart notes of September 27, 2018 indicate concerns about swelling and mild angulation of the finger. Objective findings in these notes indicate "tenderness with swelling PIPJ medial aspect with mild deviation from swelling." In the Progress Report of the same date, the treating physician diagnosed a soft tissue injury to the right little finger and recommended that the worker elevate and ice his finger, and recommended that the worker could return to light duties that did not involve lifting, pulling and pushing on October 2, 2018.
In discussion with the WCB case manager on September 28, 2018, the worker confirmed how the injury occurred and that he sought medical treatment right away. The worker advised that he returned to his employer after he was treated and provided his employer with a Work Capabilities Assessment form from his physician indicating that he should remain off work for one week. The worker advised the WCB that his supervisor informed him of the employer's return to work program and that there were one-handed duties available for him to perform. He informed his supervisor on September 27, 2018 that he wanted to wait until after he received the results of the x-rays before considering his ability to perform the offered one-handed duties and his employer agreed to this. The WCB case manager advised the worker that while he did have a doctor's note recommending that he remain off work until October 2, 2018, it was reasonable that his employer offered him one-handed duties. The WCB determined that he was not totally disabled and could participate in a return to work program.
On September 28, 2018, the WCB advised the worker that his claim was accepted for a right pinky injury, but because his employer offered him modified duties that were suitable based on the injury sustained, he was not entitled to wage loss benefits after September 27, 2018.
The worker requested reconsideration of the WCB's decision to Review Office on October 4, 2018, noting that on September 27, 2018, he reviewed the results of the x-ray with his physician and that he did not return to work on September 28, 2018 based upon his physician's instructions. He stated that he understood modified duties were available but believed that his obligation to undertake modified or light duties was subject to review of the x-ray results with his physician and his physician's subsequent instructions.
The employer provided a submission to the WCB dated November 20, 2018 in support of the WCB's decision and this was shared with the worker.
Review Office, on December 5, 2018, upheld the WCB's decision that the worker was not entitled to wage loss benefits beyond September 27, 2018. Review Office found that the worker's diagnosed injury was a soft tissue injury with some pain and swelling, confirmed by an x-ray and did not find any medical evidence to support that the worker required time off work due to the injury. Review Office found that suitable modified duties were available for the worker and as the worker did return to those duties after being informed wage loss benefits would not be paid, indicated that the worker was capable of performing those duties. Accordingly, Review Office determined that the worker did not have a loss of earning capacity beyond September 27, 2018 and was not entitled to wage loss benefits beyond that date.
The worker filed an appeal with the Appeal Commission on December 21, 2018. An oral hearing was arranged.
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.
The Act sets out, in s 4(2), that wage loss benefits will be paid as follows:
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.
The obligation of a worker to take part in measures to mitigate any impairment or loss of income resulting from a compensable workplace injury is set out in s 22(1) of the Act:
Worker to co-operate and mitigate
22(1) Every worker must (a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;
(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and
(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.
This obligation is further addressed in Workers Compensation Board Policy #18.104.22.168 Co-operation and Mitigation in Recovery (the "Policy"). The Policy generally states that:
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. …
The Policy states in Part A, Medical Aid, that:
An injured worker must seek out, co-operate in and receive medical aid that, in the board's opinion, promotes the worker's recovery. The worker's responsibilities include the following:
a) Avoiding any unreasonable delays in seeking medical attention for the initial injury or medical attention for any subsequent injuries or conditions that may delay recovery;
b) Regularly attending all appointments with health-care practitioners, other health-care providers, WCB medical advisors and rehabilitation consultants;
c) Reasonably co-operating with, participating in and following the medical, surgical, therapy or treatment plans, or rehabilitation programs prescribed by health-care providers and supported by the WCB…
The Policy also addresses the obligation of an injured worker to participate reasonably in return to work programs, in Part B, Return to Work and Other Programs. Specifically, the Policy sets out that the worker's responsibilities include "…reasonably participating in any return to work or disability management program the WCB considers necessary to promote the worker’s recovery…."
The employer did not participate in the appeal.
The worker appeared on his own behalf. He advanced the position that he is entitled to wage loss benefits for September 28, 2018 given that he did not attend work that day on the explicit instruction of his treating physician. He noted that his physician was aware that modified, one-handed duties were available to the worker, but that the physician determined, upon reviewing the results of the x-ray taken on September 27, 2018 that the worker should not return to work until October 2, 2018.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after September 27, 2018. For the reasons outlined below, the panel finds that the worker is entitled to benefits after September 27, 2018.
In his submission on appeal, the worker confirmed to the panel that he was seeking wage loss benefits for September 28, 2018 and this is the only issue that the panel considered and addressed.
The panel considered and relied on the file information setting out that the worker's claim for a right pinkie injury sustained at work on September 26, 2018 was accepted as a compensable injury.
In his submissions, the worker confirmed he was absent from work on September 27, 2018 to obtain medical care. Under instructions of his physician, he did not return to work on September 28, 2018 while he cared for the injury. He returned to work on the next working day, October 2, 2018 in a modified duty capacity which he continued for two weeks.
The medical reports in the file from the worker's physician dated September 26, 2018 and September 27, 2018 confirm that on September 26, 2018, the physician stated that the worker could not return to work for one week while treating the injury with ice and pain relief medication. At that time, the physician ordered an x-ray of the finger, which was taken on September 27, 2018.
Based upon the results of the x-ray, the worker's physician on September 27, 2018 revised his instructions to permit the worker to return to work with modified duties that do not involve "lifting, pulling and pushing, starting on 2nd October 2018." The treatment plan described included "pain relief, elevation and ice, [and] gentle mobilisation."
The documents on file confirm to the panel that when the worker's physician made his recommendations, he was aware that modified duties were available; nonetheless, the physician recommended the worker not return to work until October 2, 2018.
The worker, in his submission and in answering the questions of the panel noted that he carefully followed the physician's instructions for care and treatment of his injury. Specifically, he applied ice to the injured hand throughout the first several days, until his return to work, at which point he applied ice to the injury before he left for work and upon his return. He noted that he elevated the hand and used the entire course of pain relief medication prescribed to him by the physician and that he did not engage in other activities in the days before his return to work on October 2, 2018.
The Policy requires that workers mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services. Here, the evidence is that after seeing his physician on both September 26 and September 27, 2018 the worker did reasonably comply with his physician's instructions for treatment of the compensable injury.
The Policy also requires that workers reasonably participate in any return to work program. Here the physician's instructions explicitly included the recommendation that the worker return to work, doing modified duties, but not until October 2, 2018. The worker's evidence is that for this reason, he did not attend work to engage in modified duties on September 28, 2018 but returned to work on October 2, 2018.
The medical evidence on file and the worker's own submission regarding his treatment of the injury over the course of September 27 to October 2, 2018, suggest to the panel that the worker's injury was in the acute phase during this period of time. As a result, the panel finds that the worker was medically unable to perform the modified duties offered by the employer on September 28, 2018, and further, that it was reasonable for the worker to follow his physician's instructions for treatment.
While the panel acknowledges the employer could accommodate the worker with modified duties during the period in question, the evidence is that those duties were not of a sedentary nature and that the worker was medically restricted from performing those modified duties on September 28, 2018. It was therefore not reasonable for the worker to participate in the modified work program on September 28, 2018.
On a balance of probabilities, the panel finds that the worker was medically restricted from performing modified duties on September 28, 2018 and that it was reasonable for him to follow his physician's advice and instructions for treatment.
The panel therefore concludes that the worker is entitled to wage loss benefits after September 27, 2018.
K. Dyck, Presiding Officer
A. Finkel, Commissioner
M. Payette, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 25th day of June, 2019