Decision #72/20 - 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 October 20, 2018. A teleconference hearing was held on May 6, 2020 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after October 20, 2018.
That the worker is entitled to wage loss benefits after October 20, 2018.
On October 23, 2018, the employer submitted an Employer's Accident Report to the WCB, reporting that the worker injured his right wrist at work on October 20, 2018. The employer noted that the worker was helping place an aggressive/violent resident into a chair, after which he experienced a sharp pain in his right wrist.
The worker attended a hospital emergency department on October 20, 2018, where the attending physician noted the worker's complaints of "pain w/ most movements, mostly to ulnar wrist" and that the worker had full active range of motion in all directions, with pain, and no swelling or bruising in his wrist. The physician diagnosed the worker with a right wrist sprain and recommended modified work, with restrictions of minimizing lifting or straining of the right wrist and minimizing repetitive right hand/wrist movements for one to two weeks. The worker's claim was accepted by the WCB, and on October 24, 2018, the WCB's Compensation Services advised the employer of the worker's temporary restrictions.
On November 2, 2018, the worker discussed his claim with the WCB. The worker confirmed the mechanism of injury and advised that he had been on vacation and was returning to work on November 3 on regular duties. He said he was still experiencing symptoms of pain in his wrist, but the pain was not as consistent. He had done yard work the previous day and felt discomfort and tenderness in his wrist. He further advised that he had not sought medical treatment since his visit to the emergency department, but had been self-treating with ice and a tensor bandage.
On November 5, 2018, the worker attended the hospital emergency department. The emergency physician noted the worker's complaints of pain to the ulnar aspect of his right wrist, and a finding of no tenderness. The physician diagnosed the worker with a wrist sprain and queried a TFCC (triangular fibrocartilage complex) tear. No restrictions were noted on the report. On November 9, 2018, Compensation Services advised the employer that the worker was fit for work with no restrictions as at November 5, 2018.
On November 16, 2018, the worker attended an initial assessment with a physiotherapist, who noted the worker's complaints of constant pain and swelling of his right wrist. The physiotherapist diagnosed a grade 2 right wrist sprain and recommended the worker be off work for one to two weeks.
On November 19, 2018, the worker's WCB adjudicator discussed the claim with the worker. The adjudicator noted that the worker suffered a wrist injury on October 20, 2018, worked the following day, then was on vacation and scheduled days off from October 22 to November 2, 2019. He returned to work on November 3 and worked a full shift, then had a scheduled day off on November 4. He worked in a modified capacity on November 5 and 6, after which he was on vacation and scheduled days off to November 19, 2018.
By letter dated November 21, 2018, Compensation Services advised the employer that the worker's claim for compensation was accepted. The WCB further advised that given the worker was medically capable of performing modified duties which the employer had offered, there was no evidence to support a loss of earning capacity beyond October 20, 2018, and the WCB would not accept responsibility for time loss beyond that date. By letter dated November 22, 2018, Compensation Services advised the worker that they had determined he had recovered from the effects of his compensable injury and were unable to accept responsibility for any further entitlements on his claim.
The worker was seen by his family physician at a follow-up appointment on November 23, 2018. The physician noted the worker still had pain in his wrist, and physiotherapy and acupuncture were helping with the pain and with getting his range of motion and strength back. The physician reported that the worker had full range of motion of his right wrist, with soreness at full extension, and the wrist was tender on palpation of the TFCC region. The physician noted that the worker would continue with physiotherapy "since that seems to be helping a great deal," and advised that the worker was not capable of alternate or modified work.
On November 27, 2018, one of the worker's co-workers called the WCB and indicated that she "definitely saw [the worker] struggling…with his work prior to him leaving for vacation on November 5th." The co-worker noted that the worker "…wasn't able to do any of the physical parts of his job…" and they sent him to emergency to be seen by a doctor on November 5. The co-worker said the worker was wearing a tensor bandage on November 6, 2018, but was told he could not wear this at work and was still not able to use his right hand very much.
On November 28, 2018, the WCB received a copy of a hospital report indicating the worker attended the emergency department on November 5, 2018 due to worsening pain in his right wrist. The emergency physician had noted "…tenderness to ulnar aspect of wrist" and recommended the worker wear a wrist splint while at work. On November 30, 2018, Compensation Services advised the worker that the medical from the November 5 emergency department visit supported a full return to work and the earlier decision that he was not entitled to wage loss benefits beyond October 20, 2018 remained unchanged.
On December 5, 2018, the worker attended a further follow-up appointment with his family physician, who reported the worker was continuing with physiotherapy and had seen a chiropractor. The physician indicated that he would have a functional capacity evaluation performed by an occupational therapist, and listed the date when the worker could return to regular duties as unknown.
On March 4, 2019, the worker's union representative submitted further medical information and requested that Compensation Services reconsider the worker's entitlement to wage loss benefits. Included in the medical information was a report by the worker's treating chiropractor dated February 22, 2019, who noted that he had seen the worker for an initial treatment on December 3, 2018, with follow-up appointments on December 7 and 19, 2018 and February 12, 2019. The chiropractor opined that the worker "…incurred an injury to the pronator teres muscle, as well as trauma to the right brachial plexus affecting the median and radial nerve roots. This injury was consistent with the mechanisms of injury described by [the worker]." The chiropractor further noted that on February 12, 2019, the worker advised that he had returned to work but was still experiencing "…mild occasionally moderate discomfort on full pronation, however pain is manageable and he is able to perform his duties." Also included in the submission was a copy of a prescription for a splint ordered by the emergency physician on November 5, 2018, and Functional Abilities Forms completed by an athletic therapist on December 10, 2018 and January 10, 2019.
On April 5, 2019, the worker's file and additional medical information were reviewed by a WCB chiropractic consultant, who opined that the medical findings and new diagnosis of pronator teres strain and brachial plexus injury were not accounted for in relation to the workplace injury.
On April 11, 2018, Compensation Services advised the worker that the decision that he was not entitled to wage loss benefits after October 20, 2018 remained unchanged. On July 23, 2019, the worker's union representative requested that Compensation Services review their previous decisions, and provided a chronology of events in support of their request. On August 23, 2019, the worker was advised that there would be no change to the November 21, 2018 decision. On September 3, 2019, the worker's union representative requested that Review Office reconsider Compensation Services' decisions.
On October 24, 2019, Review Office determined that the worker was not entitled to wage loss benefits after October 20, 2018, but was entitled to physiotherapy treatment. Review Office found that the evidence on the file did not support that the worker had a loss of earning capacity after October 20, 2018. Review Office noted that the worker had previously indicated an ability to work modified/alternate/supported duties, and to use the affected area of injury when completing yard work on November 1, with a minimal increase in discomfort. Review Office did not support the recommendation of the worker's physiotherapist that the worker should be completely removed from work on November 16, 2018, noting the diagnosis of a wrist sprain, at four weeks post injury. Review Office was unable to find that a full inability to work existed when the worker had not attended actual work-related duties and seemed able to function in his non-work-related daily living.
On November 7, 2019, the worker's union representative appealed the Review Office decision to the Appeal Commission. An oral hearing was arranged, and proceeded by way of teleconference on May 6, 2020.
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.
Subsection 4(2) provides that 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.
The worker was represented by a union labour relations officer, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his representative and from the panel.
The worker's position was that he suffered a loss of earning capacity as a result of his October 20, 2018 workplace incident, and is entitled to wage loss benefits beyond that date.
The worker's representative submitted that the worker was never offered modified duties to accommodate his workplace injury and restrictions. The representative referred to three emails which had been submitted in advance of the hearing as supporting that modified duties were not offered to the worker. In the first e-mail, dated October 26, 2018, the worker's manager advised the disability manager that she had not seen the worker since the morning of October 21, she could accommodate the worker on the unit, he could easily adhere to his restrictions with the support of the team and there should be no impact to work tasks. In a second email, dated July 16, 2019, the WCB adjudicator confirmed to the representative that there was no documentation regarding modified duties that were offered to the worker. In the third email, dated August 22, 2019, the worker's manager advised the disability manager that she remembered speaking to the worker on the morning of October 22 and telling him to take things easy and only complete tasks he knew he could safely manage, to only complete light duties and to be mindful of his injury. The worker's manager also noted that the worker was a senior employee who knew exactly what light duties meant.
It was submitted that instead of being offered light duties, the worker was left on his own to try to figure out which duties were acceptable, based on the direction that he should do what he knew he could do safely within his restrictions. He was basically still left with responsibility for his full regular work load, but if there was something he felt he could not do, he should not do it.
The worker's representative also noted that while the worker was working on November 6, 2018, the infection control official saw the worker working with a tensor bandage and instructed him to remove it as he could not perform proper hand hygiene with it on. The official further informed him he would not be able to wear any type of brace or tensor that would cover his hand while working. The representative noted that the employer has a very clear policy on splint usage and submitted that this should have prompted a return to work meeting to discuss appropriate duties which the worker could safely do, but it did not.
The worker's representative stated that it was difficult to reconcile the November 20, 2018 decision to deny wage loss benefits with the WCB's direction to the employer on November 19, 2018 to reach out and offer one-handed duties to the worker. The representative submitted that this direction to the employer to offer one-handed duties not only suggested that the worker had not yet recovered, but also refuted the employer's claim that they had offered the worker modified duties prior to that date.
The worker's representative submitted that the physiotherapist's November 16, 2018 report and the family physician's November 23 and December 5, 2018 reports support that the worker's original wrist injury had not healed at that time. The physiotherapist thus recommended that the worker remain off work and use a splint and tape. The family physician did not support a return to work when he assessed the worker on November 23 or December 5, and arranged for a functional capacity evaluation to confirm his restrictions.
The worker's representative noted that two Functional Abilities Forms, dated December 10, 2018 and January 20, 2019, respectively, had been provided previously and outlined restrictions for a return to work. A return to work meeting was arranged with the employer on December 17, 2018, based on the worker's abilities and restrictions as outlined. The worker began a return to work plan on December 21, 2018, and returned to full duties on January 28, 2019.
In conclusion, the worker's representative submitted that the worker is entitled to wage loss benefits past October 20, 2018 up until he was fully able to return to work on January 28, 2019.
The employer was represented by an advocate and by its regional manager. The employer's advocate provided a written submission in advance of the hearing and made an oral submission at the hearing. The employer's position was that the worker is not entitled to wage loss benefits after October 20, 2018.
The employer's advocate advised that they did not dispute that the worker suffered a right wrist strain at work on his October 20, 2018 night shift. They did not feel, however, that the evidence supported that the worker was entitled to wage loss benefits.
The employer's advocate noted that the worker was able to work modified duties following the October 20, 2018 workplace incident. On the morning of October 22, 2018, the worker's manager advised him to take things easy, to only complete light duties. The manager noted that the worker was a senior employee who knew that light duties were available and what was required. The manager further advised the worker to get back to her if he had any concerns or his problems persisted. The advocate submitted that the worker had an obligation to do so in the circumstances, but he did not get back to the manager in the months that followed.
It was submitted that there are times when a wrist brace or tensor bandage could be worn at work. The evidence showed that the manager was aware the worker was wearing a tensor bandage, and had no issues with that. The worker never contacted his manager, however, with respect to being able to wear a brace or tensor bandage, nor have the splint which was prescribed for him checked by the infection control official.
The employer's advocate submitted that it was not accurate to say that the employer did not offer alternative duties. The advocate noted that the employer has no shortage of alternative duties; they routinely provide modified duties and can accommodate almost anything. The advocate submitted that it is not every return to work or job modification that requires a formal process or WCB involvement. Rather, there are many instances where the worker simply modifies their duties with the support of their manager and team. The advocate noted that in this instance, the worker had self-modified in the first place and showed he was capable of doing so. The worker knew that light duties were available, and there was no need to have a formal process.
The employer's advocate noted that the worker did not work after November 6, 2018. The advocate submitted that the worker did not contact his manager after that to see if he could continue modified duties, but if he had done so, he would have been accommodated. The advocate acknowledged that the employer has a responsibility to offer modified duties, which they did. The advocate noted that the worker also has a responsibility in the process. The employer was willing and able to accommodate him and he could have continued working modified duties.
In the employer's view, the crux of the case was that there are numerous tasks which could be performed. The diagnosis of a wrist injury does not mean that the worker could not do clerical or other work. The advocate submitted that the employer was adamant that they would have had no problem accommodating the worker.
The employer's advocate went on to note that in any event, the worker was medically cleared for work on November 5, 2018 by his own doctor and the WCB sent a letter to that effect. The advocate submitted that the medical evidence does not support that suddenly, four weeks after the accident, the worker is totally disabled. In their view, it simply does not add up, where the worker was not at work, was not in touch with the employer to advise of ongoing problems, and is suddenly totally disabled.
In conclusion, the employer's advocate submitted that the worker could have continued working in modified duties, which the employer was willing and able to accommodate, and is therefore not entitled to wage loss benefits after October 20, 2018.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after October 20, 2018. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond October 20, 2018 as a result of his October 20, 2018 workplace incident. The panel is able to make that finding, for the reasons that follow.
The worker has an accepted claim for a right wrist injury which he sustained at work on October 20, 2018.
Based on our review of all of the evidence which is before us, on file and as provided at the hearing, the panel is satisfied, on a balance of probabilities, that the worker experienced ongoing difficulties with his right wrist as a result of his compensable injury up until he resumed his full duties at the end of January 2019.
The panel finds that there was a significant amount of inconsistent information and miscommunication in the course of this file. The panel is of the view that had the worker's ongoing right wrist difficulties and restrictions been properly articulated and communicated to the employer by the WCB, the employer would have actively explored options for accommodating the worker. Unfortunately, this did not occur. As a result, the worker was unable to return to work or perform work duties.
The panel further finds that it was reasonable for the worker to follow the advice of his treating healthcare providers that he remain off work. Both the physiotherapist, who undertook an initial assessment of the worker on November 16, 2018, and the worker's family physician, who assessed the worker on November 23, 2018, advised that the worker should remain off work. The panel notes that there is an absence of medical information on file to dispute this advice or these recommendations of the treating healthcare providers.
At the follow-up appointment on December 5, 2018, the family physician indicated that the worker should remain off work, but also ordered a functional capacity evaluation to assess the worker's abilities and restrictions. The December 10, 2018 evaluation identified restrictions, and led to a return to work meeting on December 17, 2018 and a return to work starting December 21, 2018 and culminating in a return to his full regular duties on January 28, 2019.
Based on the foregoing, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity beyond October 20, 2018, through to January 28, 2019 when he resumed his full work duties, as a result of his October 20, 2018 workplace incident.
The worker is therefore entitled to wage loss benefits after October 20, 2018.
The worker's appeal is allowed.
M. L. Harrison, Presiding Officer
P. Challoner, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 3rd day of July, 2020