The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that responsibility should not be accepted for his right wrist difficulties as being a consequence of the January 22, 2013 accident and that he is not entitled to full wage loss benefits after October 30, 2016. A hearing was held on May 28, 2019 to consider the worker's appeal.

Issue

Whether or not responsibility should be accepted for the worker's right wrist difficulties as being a consequence of the January 22, 2013 accident; and

Whether or not the worker is entitled to full wage loss benefits after October 30, 2016.

Decision

Responsibility should not be accepted for the worker's right wrist difficulties as being a consequence of the January 22, 2013 accident; and

The worker is not entitled to full wage loss benefits after October 30, 2016.

Background

On February 11, 2013, the worker reported to the WCB that he injured his left wrist due to his repetitive job duties on January 22, 2013. His claim was accepted by the WCB for extensor tendinosis and a ganglion to the flexor area of his left wrist on June 6, 2013. The worker had surgeries on May 18, 2013, December 23, 2013 and May 7, 2014.

In a discussion with his WCB case manager on September 11, 2014, the worker advised that he would be attending for a follow-up appointment with the orthopedic surgeon who performed the surgeries and wanted to discuss the increasing pain in his right hand, he felt was happening due to overcompensating for his left wrist injury.

On July 6, 2015, the worker advised his family physician that his right wrist was sore, noting that it ached and made an audible clicking sound. The family physician referred the worker for an x-ray, which was conducted on July 7, 2015. The x-ray indicated "No significant bone or joint abnormalities are demonstrated."

The worker did not recover completely from the surgeries and on August 20, 2015, the WCB implemented permanent restrictions.

On November 10, 2015, the worker attended for a follow-up appointment with his family physician. He reported "…increasing symptoms to R (right) wrist; occasional pain; limitations". The physician's assistant working with the worker's family physician reviewed the July 7, 2015 x-ray of the worker's right wrist and diagnosed the worker with a tendinitis/strain injury to his right wrist.

The worker's WCB case manager discussed the worker's right wrist issues with him on December 22, 2015. The worker advised that he had not had a new accident or injury to his right wrist, only that his right wrist "…just aches all the time and also his right arm around his elbow." He further advised that he had not been participating in most of the recreational activities he used to due to the pain in his right wrist and that he was unable to do many of the tasks associated with the house.

On January 5, 2016, the worker's treating orthopedic surgeon advised the WCB that they did not have any records that documented issues with the worker's right wrist. The worker's file was reviewed by a WCB medical advisor on January 7, 2016 who noted that given the limited medical information available, they were unable to provide a "tissue specific diagnosis concerning the right wrist." The WCB advised the worker on January 11, 2016 that his right wrist difficulties were not accepted as being related to his January 22, 2013 workplace accident. The WCB noted that there was no evidence the worker's right wrist difficulties were caused by work-related activities as the worker had been off work for a prolonged period of time and that the worker reported that he participated very little in household activities or hobbies. It was further noted that there was no evidence of the worker taking part in any activities that involved forceful repetitive grasping or lifting since he had been off work and as such, it could not be determined that his right wrist difficulties were related to his compensable left wrist injury.

Due to ongoing symptoms, the worker underwent a left wrist fusion surgery on March 31, 2016. At his six week check-up appointment with the orthopedic surgeon, the surgeon opined that the worker would benefit from a work hardening program and increase strengthening.

An MRI conducted on the worker's right wrist on July 8, 2016 indicated: "Tear scapholunate ligament associated with mild DISI (dorsal intercalated segmental instability". The worker's file was reviewed by a WCB sports medicine consultant on August 17, 2016. The WCB sports medicine consultant opined:

MRI of the right wrist suggests a scapholunate ligament tear to the wrist; the clinical reporting regarding the right wrist and (sic) is quite vague and therefore it is difficult to determine whether the worker's symptoms and clinical exam correlate with the MRI findings, or whether the MRI findings suggest an incidental finding.

…

…Scapholunate ligament tears are almost always caused by an acute trauma to the wrist. Less likely causes will include other injuries to the wrist causing damage to the wrist ligamentous or cartilaginous structures or prolonged inflammatory conditions, none of which have been document (sic) on file. "Increased or preferential" use of an upper limb over a 3 year period would not lead to a scapholunate ligament tear…"

On August 22, 2016, the worker was advised by the WCB that the new medical information was reviewed however, there was no change to the January 11, 2016 decision that his right wrist difficulties were not related to the workplace injury of January 22, 2013.

The worker was initially assessed for a work hardening program on August 22, 2016 and began the program on August 29, 2016. On September 26, 2016, the employer was advised that the worker was fit to return to work within a light level with the following permanent restrictions:

• Bilateral floor to waist lift: up to 20 pounds occasionally 

• Bilateral waist to shoulder lift: up to 20 pounds occasionally 

• Bilateral carry: up to 20 pounds occasionally 

• Dynamic pushing and pulling: up to 20 pounds occasionally 

• Bending and reaching: no restrictions 

• Sitting, standing, walking: no restrictions 

• Ongoing restriction of avoiding wrist movements against resistance and minimize activity requiring awkward wrist postures. Pace activities that require compensatory movements through the left shoulder secondary to the restricted left wrist.

On October 24, 2016, the employer provided a letter to the worker setting out the modified job duties they were offering the worker. On October 25, 2016, the WCB advised the worker that the modified job duties offered by the employer had been reviewed and were determined to be within his current functional capabilities and that the return to work plan was developed to assist him in his return to work. The worker was further advised that partial wage loss benefits would be paid based on the graduated return to work schedule as follows:

Week of October 31 - November 4 - 4 hours per shift 

Week of November 7 - 11 - 2 hours per shift

Entitlement to wage loss benefits would end effective November 14, 2016. The employer advised the WCB that the worker did not attend for work on October 31, 2016.

The worker requested reconsideration of the WCB's August 22, 2016 decision that his right wrist difficulties are not related to the January 22, 2013 workplace accident and the October 25, 2016 decision that he was not entitled to further wage loss after November 14, 2016 to Review Office on November 8, 2016. The worker submitted a report from his treating family physician dated November 6, 2016 which noted that a review of the modified duties offered included frequent and repetitive activities that were not suitable for the worker, along with a referral letter to the worker's treating orthopedic surgeon for management options. The employer provided Review Office with a submission on December 22, 2016, and the worker provided a further response on January 12, 2017. Copies of each submission were shared with the parties.

On January 19, 2017, Review Office determined that no responsibility would be accepted for the worker's right wrist condition and that the worker was not entitled to full wage loss benefits beyond October 30, 2016. Review Office was unable to establish a connection between the worker's right wrist difficulties and the January 22, 2013 workplace accident. Review Office found that if the worker's job duties were the cause for the development of his right wrist difficulties, the symptoms of those difficulties would have been felt while he was performing those job duties. It was further noted that the worker was right hand dominant and it was unlikely, on a balance of probabilities, that performing activities of daily living would have led to a scapholunate ligament tear. Review Office further found that the modified duties offered by the employer were within the worker's compensable restrictions and as such, the worker did not have a loss of earning capacity beyond November 11, 2016 and was not entitled to full wage loss benefits after October 30, 2016.

The worker filed an appeal with the Appeal Commission on December 7, 2018. An oral hearing 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.

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.

Section 37 of The Act provides where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

WCB Policy 44.10.80.40, Further Injuries Subsequent to a Compensable Injury provides:

A further injury occurring subsequent to a compensable injury is compensable:

(i) when the cause of the further injury is predominantly attributable to the compensable injury; or 

(ii) when the further injury arises out of a situation over which the WCB exercises direct specific control; or 

(iii) when the further injury arises out of the delivery of treatment for the original compensable injury.

A further injury which occurs as a result of actions (for example, medical treatment) known by the worker not to be acceptable to the WCB is not compensable.

WCB Policy 43.20.25, Return to Work with the Accident Employer:

When a worker is injured or becomes ill at work, the goal of the WCB is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. Most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.

Under The Workers Compensation Act (the Act), some employers are required to offer to re-employ injured and ill workers. The WCB will provide assistance to all employers, whether or not they are required to offer re-employment, to help them return an injured or ill worker to work.

This policy outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. It also provides guidance and interpretation of the re-employment obligations outlined in section 49.3 of the Act.

WCB Policy 44.10.30.60, Cooperation and Mitigation in Recovery provides:

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.

Worker's Position

The worker is appealing the decision to not accept responsibility for his right wrist difficulties as being a consequence of the January 22, 2013 accident, and the decision to not provide full wage loss benefits after October 30, 2016.

The worker was self-represented at the hearing on May 28, 2019 where he responded to questions from panel members.

The worker's position was that his right wrist difficulties arose as a result of his left wrist injury… "which required me to do all my personal daily activities with my right hand."

The worker stated that he was unable to participate in the graduated return to work program. "The positions / duties offered to me were not appropriate or suitable given my ongoing medical issues". The worker stated that his physician recommended he not return to work.

Employer’s Position

The employer's representative advocated for the acceptance of the review office decision of August 22, 2016. The representative felt that there was no evidence to support the worker’s right wrist difficulties are in any way related to his compensable left wrist injury.

The representative confirmed that the employer offered a graduated return to work with modified duties to accommodate his compensable restrictions. He reported that the worker refused to participate in the RTW program.

Analysis

The worker is seeking WCB acceptance that his right wrist difficulties are the result of his compensable left wrist injury of January 22, 2013. For the appeal to be accepted, the panel must find, on a balance of probabilities, sufficient evidence of a causal relationship between the right wrist difficulties and the original compensable injury of the left wrist. In addition, for the panel to determine full wage loss benefits are payable after October 30, 2016, it must find the worker continued to have a loss of earning capacity due to the January 22, 2013 injury.

The panel is unable to relate the right wrist difficulties to the compensable injury of the left wrist based on the evidence provided. The panel finds that the worker was able to participate in a return to work program but declined to participate. Therefore, the worker is not entitled to full wage loss benefits after October 30, 2016, as per WCB Policy. Policy 44.10.30.60 outlines the responsibility of the worker to mitigate the negative effects from an injury by participating fully in reasonable return to work programming.

In arriving at these conclusions, the panel placed weight on the following evidence:

• Delayed onset of symptoms related to right wrist. (16 months). First report of symptoms was September 2014 as noted on worker injury report taken by a WCB Case Manager. 

• Difficulty identified by the worker while performing a non-work related event (placing coffee in console). The panel finds the daily personal activities using the dominant/stronger right limb were unlikely to lead to a scapholunate ligament tear after 16 months off work. 

• The worker mentioned sleep deprivation as result of injury. The panel could not find a report that this was a medical concern. 

• A review of the physician's chart notes (August 2016) make no mention of ongoing chronic pain. 

• February 2017 correspondence from the worker’s surgeon indicated "I cannot state cause and effect therefore I am not certain why his right wrist is the way he is (sic) whether it is due to work or whether it is due to activities outside of work." 

• The panel acknowledges the report provided by the rehabilitation clinic that outlined the duties that the worker could perform along with the frequency. It was noted that some of the worker's daily personal activities closely matched some of the offered modified duties.

The panel was unable to find a causal relationship between the right wrist difficulties and the original compensable injury of the left wrist. The worker's appeal on this issue is dismissed.

The panel finds that the worker's compensable injury did not prevent the worker from participating in the return to work program. The worker opted to decline to participate. Therefore, the panel finds there is no entitlement to full wage loss benefits after October 20, 2016. The worker's appeal on this issue is dismissed.

Panel Members

B. Hartley, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

B. Hartley - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of July, 2019