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 is entitled to wage loss benefits effective July 10, 2019. A teleconference hearing was held on October 27, 2020 to consider the employer's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits effective July 10, 2019.

Decision

The worker is entitled to wage loss benefits effective July 10, 2019.

Background

An Employer’s Accident Report was provided to the WCB on June 17, 2019, indicating the worker injured his left thumb in an incident at work on June 16, 2019 when a pressurized hose he was disconnecting twisted and hyperextended his thumb. The worker saw a jobsite healthcare provider on the accident date and reported pain, deformity and immobility to his left thumb. He noted he continued working after the injury but was unable to move his thumb. The healthcare provider identified swelling and deformity to the metacarpophalangeal (MCP) joint of his left thumb, tenderness over the joint and inability to extend the thumb completely and diagnosed with a likely left thumb dislocation.

The worker sought care at the local emergency department the same day. His dislocated left MCP joint was relocated and a spica cast was applied. Pre and post relocation x-rays were taken. It was recommended the worker could return to work with no left-handed duties.

On June 19, 2019, the worker attended the emergency department at a nearby centre, reporting pain around the base of his thumb that radiated to his elbow and the emergency room physician noted the worker’s thumb was swollen and tender and a decreased grip and movement. An x-ray was taken with no fracture or dislocation noted. The worker was diagnosed with a ligament injury and a referral was made to a sports medicine clinic.

The worker saw a sports medicine physician on June 20, 2019 who recorded the worker had a tender MCP joint, forearm and shoulder with decreased range of motion in his shoulder, queried whether worker had a thumb dislocation, and diagnosed soft tissue injury in his arm and shoulder strain. The physician recommended the worker remain off work for one week.

On June 27, 2019, the worker contacted the WCB to advise he had a follow-up appointment at the sports medicine clinic and had been cleared to return to work with a restriction on using his left hand. The WCB accepted the worker’s claim and advised wage loss benefits from June 20, 2019 to June 27, 2019 had been approved.

The WCB provided the employer with the worker’s temporary restrictions on July 3, 2019 and asked the employer if they had suitable modified duties available for the worker. On July 4, 2019, the employer provided the WCB with copies of emails indicating the employer had offered modified duties to the worker on June 28, 2019 but he requested to return to work on July 8, 2019. On July 4, 2019, the WCB advised the worker that as suitable modified duties had been offered by his employer and he refused those duties, he was not entitled to wage loss benefits after June 27, 2019.

The worker contacted the WCB on July 10, 2019 to advise he returned to work on modified duties on July 8, 2019; however, he advised his employer that he could not perform the modified duties as some of the duties were causing pain in his arm that started in his thumb and moved up his arm. He requested that he only perform the portion of the modified duties that were not causing him pain and the employer advised they could not accommodate him.

Additional medical information was gathered, including a July 12, 2019 report from the worker’s treating sports medicine physician noting the worker had severe pain with any movement of his wrist, hand, elbow and shoulder, and limited range of motion. An MRI of the worker’s left thumb taken July 29, 2019 revealed that the worker’s “Flexor and extensor tendons of the thumb are intact. Radial and ulnar collateral ligaments of the first MCP joint are intact. There may be mildly asymmetric joint space narrowing at the first MCP joint but no other significant bone or joint abnormality.”

At an initial physiotherapy assessment on August 6, 2019, the worker’s decreased activity tolerance and difficulty with the activities of daily living was noted, and that hand strength was not assessed due to pain.

The worker attended for a call-in examination with a WCB medical advisor on September 24, 2019. The medical advisor concluded that the diagnosis related to the workplace accident was a left thumb sprain with a possible left first MCP subluxation with a natural history of recovery typically occurring in four to eight weeks. The WCB medical advisor noted the worker’s presentation at the examination was “…out of keeping with the initial injury, and not patho- anatomically accounted for on the basis of the left thumb sprain/possible left first MCP joint subluxation”. Restrictions were not recommended.

On October 1, 2019, the WCB advised the worker that he was not entitled to any further benefits beyond that date. On March 10, 2020, the worker’s representative requested the Review Office reconsider the WCB’s July 4, 2019 decision that the worker was not entitled to wage loss benefits beyond June 27, 2019. The worker’s representative noted the worker attempted the modified duties offered by the employer which exacerbated his injury, and that the worker’s injury was still being treated at that time. As such, the worker should be entitled to wage loss benefits after June 27, 2019.

On April 9, 2020, Review Office rescinded the WCB’s decision, finding the worker remained off work while seeking medical treatment and reported ongoing difficulties and as such, was entitled to wage loss benefits as of July 10, 2019.

The employer filed an appeal with the Appeal Commission on May 12, 2020. A teleconference hearing was arranged for October 27, 2020.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations under that Act and the policies established by the WCB Board of Directors.

Section 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. That compensation, under s 4(2), includes wage loss benefits for the loss of earning capacity resulting from the accident. Where the WCB determines that a worker has sustained a loss of earning capacity, compensation is payable under s 37 of the Act.

An injured worker has an obligation under s 22 of the Act to:

(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.

If a worker fails to comply with this obligation, s 22(2) allows the WCB to reduce or suspend the compensation payable to the worker.

The WCB has established Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) which outlines the WCB’s approach to the return to work of injured workers through modified or alternate duties with the accident employer. The Policy sets out that: 

All employers, regardless of whether they are bound by the re-employment obligation, are encouraged to provide modified or alternate work to injured or ill workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity. The WCB will only become involved in two situations. The first is when either the worker or the employer requires financial or technical support to help the worker return to work. The second is when the worker and the employer disagree about whether the modified work placement is appropriate.

Employer’s Position

The employer was represented in the appeal by its Workers Compensation Claims Manager who made an oral submission on behalf of the employer and provided answers to questions posed to him by panel members. The employer’s representative provided and relied upon a written submission to the panel dated June 18, 2020.

In the submission on behalf of the employer, the representative provided a thorough claim history with reference to the medical reporting and findings and a focus on the worker’s return to work attempt that began on July 9, 2019 when the worker signed a modified work agreement with the employer.

The employer’s representative outlined that the worker was complaining of pain and presenting as “grimacing and fidgety” during the meeting to discuss his modified work assignment. After the agreement was signed, the worker was taken by a foreman to the site where he was to undertake the modified work assignment of cleaning walls and surfaces inside portable toilets. Some time later, the worker and foreman returned, and the foreman noted the worker had not even attempted to perform his work as he was in too much pain and bending over made it worse.

At that time, the employer explained to the worker that his participation in modified work was expected and that he could work within his own limitations, at his own pace. The worker explained that he could not perform the work due to pain and the employer advised the worker that this was seen as a refusal of work. The worker maintained he was not refusing work but could not perform it and was directed to his union representative for advice. The next day, the worker was assessed by the on-site nurse practitioner who recommended he not return to duties until he could be assessed at a sport medicine clinic.

On questioning by the panel, the employer’s representative confirmed that the worker had made a request for further accommodation, asking that a stool be provided to allow him to do his work from a seated position, and that the employer did not accommodate this request.

The employer’s representative noted that clinical findings in subsequent medical investigations included a July 13, 2019 report that the worker’s pain was out of proportion to the clinical examination findings, a July 22, 2019 report noting unsatisfactory progress and a July 29, 2019 MRI that revealed “...mild asymmetric joint space narrowing at the first MCP joint but no other significant bone or joint abnormality.” Through August 2019, the worker continued to report worsening symptoms. At a WCB call-in examination on September 24, 2019, the physician determined that a normal recovery for the most likely diagnosis of a left thumb sprain was 4-8 weeks and the worker’s continuing left upper limb pain was not medically accounted on the basis of the initial injury, suggesting the worker was amplifying his symptoms.

The employer’s representative concluded that the evidence does not support that the light duties undertaken by the worker on July 9, 2019 had any significant impact on the worker’s further disability or lack of progress to recovery. The employer’s position is that the worker failed to comply with his obligation to cooperate with the return to work program and to take all reasonable steps to reduce or eliminate loss of earnings resulting from an injury. The employer offered appropriate modified duties to the worker and these remained available to him throughout the claim. For these reasons, the employer states that the worker is not entitled to wage loss benefits beyond July 10, 2019.

Worker’s Position

The worker appeared in the hearing represented by a worker advisor and was accompanied by his brother as a support. The worker advisor provided an oral submission on behalf of the worker and addressed questions to the worker. The worker provided testimony in answer to the questions posed by both the worker advisor and members of the appeal panel.

The worker’s position, as outlined by the worker advisor, is that the worker is entitled to wage loss benefits beyond July 10, 2019 as he did not continue to participate in the modified work duties offered by the employer based on medical advice to the contrary. The worker’s injury, a dislocation of the MCP joint in his left thumb was aggravated by his attempted participation in the modified duties on July 9, 2019. Specifically, he experienced an increase in pain symptoms and swelling in the area, as confirmed by the onsite nurse seen on July 10, 2019 who advised the worker he could not continue working.

The worker described feeling pressured by the employer to sign the modified work agreement. He understood that if he did not sign, he could lose his job or get laid off, or would not be eligible for medical benefits from WCB. The worker said that he was in severe pain at the time and was made very anxious by the experience. The worker advisor noted to the panel that the worker was new in his employment at the time of his injury and that he was a youth with little prior workforce experience.

With respect to the employer’s assertion that the worker did not even attempt to participate in the offered modified duties, the worker testified that he did make effort to participate. Initially, he watched as the duties were demonstrated to him by the supervisor; then, he tried to do what he had been shown how to do. The worker noted he needed assistance from the supervisor to put his glove on. He testified he was able to reach upwards to clean the walls and ceiling of the portable toilet, although with some pain in his shoulder, but that when he reached down to wipe, he experienced pain shooting up into his arm. The worker confirmed that he could do the cleaning task with his uninjured right arm, but still needed to use his left arm to support or brace himself when reaching downward to clean the seat and floor areas. The worker stated that the supervisor told him to stop when it was obvious that the work was causing him pain.

The worker described to the panel the meeting with the employer that followed his attempt to complete the modified duties. He noted that he asked for his union representative to be present, as well as his brother who also worked onsite, but neither was brought into the meeting. He indicated to the panel that he requested other light duties instead but was told the employer could not accommodate him. Afterward, he went to see the union representative and provided information on what had happened.

The worker explained to the panel that when his treating physician cleared him to participate in a return to work at right-handed duties, his physician told him that if the duties made his pain worse, the employer should adapt the duties. After his attempt to complete the modified duties on July 9, 2019, the worker said that his pain symptoms increased, especially the night following. That is why he went to see the nurse practitioner the next day, who recommended to him that he not return to work but go for assessment at a sport medicine clinic.

The worker advisor urged the panel to consider and rely upon the reports provided by the nurse practitioner who assessed the worker on July 10, 2019 and the subsequent specialist medical reports.

In sum, the worker’s position is that he should be entitled to wage loss benefits beyond July 10, 2019 as the modified duties he undertook on July 9, 2019 aggravated his injury and as a result he was not medically capable to continue with the modified duties the employer offered.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits effective July 10, 2019. In order to grant the employer’s appeal, the panel would have to determine that the worker did not have a loss of earning capacity as of July 10, 2019 resulting from the compensable workplace injury. For the reasons outlined below, the panel was not able to make such a finding and the employer’s appeal is denied.

The panel considered the employer’s written submission of June 18, 2020 as well as the additional information provided by the employer’s representative in response to questions of the panel members and the information contained in the worker’s WCB claim file. The panel also considered the testimony of the worker as to the events that followed the injury of June 16, 2019, with particular attention to the attempted return to modified light duty work that began on July 9, 2019.

The panel noted the worker’s WCB claim file contains a series of file notes and memoranda dated July 10, 2019. These confirm that on that date, the worker’s union representative contacted the WCB on behalf of the worker indicating he attempted to perform the modified duties offered by the employer but that those duties caused the worker additional pain. The union representative also indicated that the worker asked the employer if they could accommodate him by allowing him to clean the toilets in different way that would not exacerbate his pain, but the employer advised that further accommodation was not possible. Another claim note confirms that the nurse practitioner who saw the worker at the work site also contacted the WCB indicating that the worker was unable to participate in light duties due to pain in his arm and shoulder and that the employer’s position is that the worker is refusing work. The nurse practitioner confirmed the worker would be taken off work on July 11, 2019 and would see the sport medicine physician the next day. Another file note confirms that the employer contacted the WCB on July 10, 2019 indicating that the worker’s pain symptoms are preventing him from working within his restriction of no use of his left hand. The panel noted as well that the WCB case manager was not available on July 10, 2019 to address the concerns of the union representative, the nurse practitioner and the employer. The file record from this period contains no indication that the WCB, upon learning of the worker’s difficulties with the return to modified work, provided any advice or support to the employer or the worker in resolving this issue between the parties as to the worker’s obligations and options in the circumstances.

The employer confirms it advised the worker of his obligation to participate in the modified duties under the terms of the modified work agreement, and that the duties offered were within the worker’s medically provided restrictions. The employer’s position is that the worker, on July 9, 2019 refused that work and did not return to it although the offered employment remained available, resulting in the subsequent loss of earning capacity. This was, according to the employer, the worker’s choice and therefore he should not be entitled to wage loss benefits beyond July 10, 2019.

The worker testified he was aware of his obligation to attempt those duties but also understood his physician’s advice to work only to his limits so that he would not aggravate his injury. We are satisfied, based on the worker’s testimony, that he did make a reasonable attempt to complete the modified duties offered by the employer and that when he had difficulty in doing so, he appropriately asked the employer if there were other duties or accommodations available that might allow him to work with his injury.

The medical reports for this period confirm that on June 20, 2019 the worker was advised by the treating sport medicine physician to remain off work until reassessed in one week. On June 27, 2019, the sport medicine physician assessed him again, noting less swelling but continuing pain with movement of the worker’s left thumb. He was given a thumb spica to tip cast and told to follow up in two weeks. The physician provided a note indicating the worker was capable of light duties with no use of his left hand.

The July 10, 2019 report from the nurse practitioner records the worker’s complaints of increased pain to thumb, forearm, shoulder since June 27 and “...worse since started back to work on July 8; difficulty managing work duties.” Clinical findings include that the cast was intact and the worker’s thumb warm to touch, with “++ pain to forearm and anterior shoulder” and the worker was reluctant to move his wrist, elbow or shoulder. The nurse practitioner noted the recovery was not satisfactory and that the worker was not capable of alternate or modified work on that day or the next, until his fitness for duty could be assessed by the treating sport medicine physician.

When the worker was assessed on July 12, 2019 the sport medicine physician noted “severe pain with any movement of wrist hand elbow, shoulder, no swelling” and recorded that the worker’s “work environment not beneficial to patient, increased symptoms of arm preventing him from functioning so off work” until July 22, 2019.

The worker saw his family physician on July 13, 2019 complaining of intense pain and being unable to move his thumb. The physician stated the worker’s pain was “out of proportion to the clinic exam concern” but noted he was not able to touch the worker’s thumb to examine it. The physician ordered an MRI study.

The medical reporting confirms that the worker continued to be assessed by the sport medicine physician. On July 22, 2019, the physician provided a further note authorizing the worker to remain off work until July 31, 2019. At follow up on July 30, 2019, the physician noted improvement and prescribed physiotherapy. An MRI study was conducted the same day. The physician provided a further note to remain off work through to August 13, 2019 to attend physiotherapy treatment. The worker was assessed for physiotherapy on August 6, 2019 and attended the sport medicine clinic for follow up on August 12, 2019. The attending physician on that date stated the worker was to remain off work to continue rehabilitation.

The worker continued with physiotherapy and on August 28, 2019 the physiotherapist recommended the worker could return to sedentary duties if available but could not use his left arm or hand. The worker’s treating physician assessed him again on September 6, 2019, noting improvement in the worker’s range of motion in his thumb, wrist, elbow and shoulder with tenderness in the dorsal wrist and MCP joint. The physician recommended further physiotherapy and that the worker should remain off work and could not work light duties while he obtained that treatment. The treating physiotherapist, on September 25, 2019 again reported the worker was capable of right-handed/sedentary duties if available, with no lifting greater than 10 pounds and minimal use of his left hand.

The WCB call-in examination report of September 25, 2019 set out the medical advisor’s conclusion that the compensable injury was a left thumb sprain with a possible left first MCP subluxation, with a typical recovery period of 4-8 weeks. The medical advisor concluded that the worker’s non-specific left upper limb pain was not accounted for in relation to the compensable injury and that there were likely “symptom amplification/non-structural factors...likely playing a role” in the worker’s current presentation. Further restrictions arising out of the compensable injury were not recommended.

On the basis of the medical reporting, the evidence heard in the hearing and the claim file documents, the panel is satisfied that although the worker was initially deemed capable of returning to work on modified, right-hand only duties as of June 27, 2019, when the worker attempted the duties offered by the employer on July 9, 2019, he was unable to perform the work assigned to him. The treating nurse practitioner removed him from work on July 10 and 11, 2019. When the worker next saw his treating physician on July 12, 2019, he was instructed to remain off work. The evidence from the period thereafter supports a finding that the worker continued to obtain follow up treatment, follow his physician’s treatment plan and participate in physiotherapy as directed.

Further, the evidence confirms that the worker, on experiencing difficulties with his assigned modified duties, asked the employer himself, and asked again through his union representative, if any other accommodation could be offered. The employer advised the worker there were not any other options available.

The panel finds that the worker appropriately sought assistance from the employer and his union representative as to whether other duties could be assigned, or modifications offered. Further, we find the worker appropriately sought medical attention from the on-site nurse practitioner and from his treating physician, and on their advice, did not perform further modified work duties after that date.

The file record is clear that the employer informed the WCB that the modified work arrangement was not successful. The union representative and nurse practitioner also both contacted the WCB for assistance. It is unfortunate that the WCB did not offer any support or assistance to the parties at this time to address the challenges that arose in the course of the worker’s attempted return to work as it ought to have done under the provisions of the Return to Work Policy.

The panel concludes that the evidence before us supports, on a balance of probabilities, that the worker’s loss of earning capacity beyond July 10, 2019 was the result of the compensable injury sustained on June 16, 2019. On this basis, we determine that the worker was entitled to wage loss benefits beyond July 10, 2019.

The employer’s appeal is denied.

Panel Members

K. Dyck, Presiding Officer
D. Loewen, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of December, 2020