The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that she is not entitled to wage loss benefits for the period August 30, 2017 through to the end of September 2017. A videoconference hearing was held on December 8, 2020 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits for the period August 30, 2017 through to the end of September 2017.

Decision

That the worker is not entitled to wage loss benefits for the period August 30, 2017 through to the end of September 2017.

Background

On July 17, 2017, the worker filed a Worker Incident Report with the WCB for a right elbow injury, noting a date of incident of July 12, 2017. The worker indicated she originally injured her elbow in February 2017 and had "a golfer elbow injury." With respect to the cause of her injury, the worker stated "It is from repetitive and there is a lot of pressure to apply and scraping movements that put a lot of pressure on my elbow. I do this for most of the shift. I am using repetitive motions."

On July 13, 2017, the worker saw her family physician who noted the worker's reported injury to her right arm and shoulder and description of the injury as "pain in arm and shoulder due to repetitive movements at work, manageable until transferred to new area." The physician diagnosed the worker with right ulnar neuropathy, medial epicondylitis and a deltoid strain. The physician recommended physiotherapy, anti-inflammatory medication, and a brace, and outlined restrictions of avoiding manual work with her arm and working over shoulder height. At an initial physiotherapy assessment on July 20, 2017, the worker was diagnosed with ulnar nerve tension, median nerve compression, lateral epicondylitis and overuse of the rotator cuff.

On August 17, 2017, the WCB contacted the worker to discuss her claim. The worker advised she started to notice her symptoms before February 2017, likely in October or November of the previous year, when she noticed she was losing her grip strength. She was accommodated by the employer to a position with lighter duties, but was transferred again to another work area on July 10, 2017 when she began to experience allergy scent issues not related to her WCB claim. She advised the WCB that her right elbow difficulties progressively worsened as the workflow at her new work area was not balanced.

Additional information was gathered from the worker's treating healthcare providers, the employer, the worker's manager and the worker. On September 19, 2017, the worker's file was reviewed by a WCB medical advisor. The medical advisor noted that epicondylitis is a common condition but there is evidence that job duties which involve repetitive and forceful wrist movements of flexion/extension and/or supination/pronation may contribute to the development of the condition. The advisor further opined that epicondylitis is not typically associated with total disability, and restrictions could include avoiding repetitive and forceful right wrist movements of flexion/extension or supination/pronation; and avoiding heavy lifting or pushing/pulling with her right hand/arm greater than five pounds; to be reviewed in 3 to 4 weeks. The advisor further noted that most cases of epicondylitis settle with time, typically a few weeks, and avoidance of repetitive and forceful activities.

On September 21, 2017, the WCB's Compensation Services advised the worker that her claim was accepted for right lateral epicondylitis, but she was not entitled to wage loss benefits. Compensation Services noted that medical evidence did not support the worker was totally disabled. Compensation Services determined she could perform the modified duties offered by the employer, which they found to be appropriate. Compensation Services therefore advised the worker that wage loss benefits after September 1, 2017 had been disallowed.

The worker returned to work on modified duties on October 2, 2017. By letter dated October 3, 2017, Compensation Services advised that it had been determined that the worker's temporary restrictions in relation to the compensable diagnosis were no push/pull greater than five pounds with right arm and no forceful repetitive work.

Further information was gathered from the worker, the employer and the worker's treating healthcare providers. On December 8, 2017, the worker's file was again reviewed by the WCB medical advisor, who opined that the worker's initial diagnosis of a right elbow epicondylitis would not account for the widespread symptoms reported by the worker involving her right arm and beyond in relation to work duties, noting the worker had apparently been performing only very light duties. The WCB medical advisor opined that a lack of significant improvement over several months doing very light job duties could not be explained. On December 12, 2017, Compensation Services advised the worker that wage loss, medical aid and/or medical treatment costs would not be authorized beyond December 18, 2017, as they had determined her ongoing difficulties could not be causally related to the workplace mechanism of injury.

On May 23, 2018, the worker's family physician provided the WCB with a May 8, 2018 MRI report regarding the worker's right shoulder. The MRI indicated the worker had mild degenerative changes at the acromioclavicular (AC) joint, and no evidence of a rotator cuff tear. On May 29, 2018, the WCB medical advisor reviewed the worker's file and the MRI report. The medical advisor opined that the MRI did not indicate any significant findings aside from expected age-related degenerative changes at the AC joint and at the insertion of the rotator cuff tendons, which were not typically associated with symptoms, and that it was unlikely the worker's job duties had materially contributed to the degenerative findings on the MRI. On June 5, 2018, Compensation Services advised the worker that the new medical information was reviewed and there would be no change to the earlier decisions.

On July 19, 2018, the worker requested that Review Office reconsider Compensation Services' June 5, 2018 decision. In a written submission dated October 4, 2018, the worker submitted that she should be entitled to wage loss benefits from September 1 to October 17, 2017 because her doctor took her off work as the modified duties provided by her employer were not appropriate. She noted she returned to work and experienced a worsening of her symptoms, and as a result, should also be entitled to benefits beyond December 18, 2017. On October 31, 2018, Review Office returned the worker's file to Compensation Services for further investigation.

On January 14, 2019, the WCB completed a worksite assessment, including an assessment of the modified duties provided by the employer. On January 15, 2019, a copy of the worksite assessment report was forwarded to the worker for her review, and on January 30, 2019, the worker provided a response to that report. On March 14, 2019, the worker's WCB case manager, met with the worker, her family physician, the worker's social worker, a union representative, an interpreter and the employer. Additional medical information was provided indicating the worker had prior right shoulder difficulties, including Return to Work Capabilities Forms that pre-dated the 2017 workplace accident. On May 3, 2019, Compensation Services advised the worker that after further investigation and a full review of her file, there was no new information to support an injury occurred in the workplace to her right shoulder and/or that ongoing difficulties were related to the workplace injury and she was not entitled to wage loss benefits after September 1, 2017 or benefits after December 18, 2017.

On May 16, 2019, the worker requested that Review Office reconsider Compensation Services' decision, noting she continued to suffer ongoing symptoms and her right arm was not as strong or functional as it was prior to the workplace accident. With respect to benefits from September 1, 2017 to October 2017, the worker submitted she did not refuse to work but was taken off work as per her doctor's instructions. The worker further submitted that she should be entitled to benefits after December 18, 2017 as the modified duties were not correct for her right arm problems. On July 12, 2019, the employer provided a submission in support of the WCB's decision, and on July 29, 2019, the worker responded to the employer's submission.

On August 9, 2019, Review Office determined the worker was not entitled to wage loss benefits. Review Office accepted the description of the light duties as provided by the worker on August 17, 2017. Review Office noted the worker's family physician indicated on August 16, 2017 that the worker had a good reduction in symptoms in her right elbow while on vacation from July 31 to August 13, 2017, but that she had an increase in her symptoms within two hours of returning to work on August 15, 2017, and recommended the light duties be made even lighter or the worker would need time off. Review Office could not establish that a few hours of light duties would have caused a substantial flair in the worker's symptoms. Review Office noted that the claim was accepted for a right lateral epicondylitis and agreed that this was the best diagnosis associated with the claim. Review Office accepted that the light duties provided by the employer were appropriate and within the worker's capabilities, and found that it was the worker's personal choice to remain off work. Accordingly, Review Office found that the worker did not have a loss of earning capacity and was not entitled to wage loss benefits. Review Office further found that there was no evidence the worker's right shoulder had been injured by work activity, and there was no responsibility for the worker's right shoulder issues.

On April 15, 2020, the worker's representative appealed the Review Office decision to the Appeal Commission and a videoconference 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.

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 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states:

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.

Subsection 22(2) provides that if a worker fails to comply with subsection (1), the WCB may reduce or suspend the worker's compensation.

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.

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. With respect to modified or alternate work, the Policy provides, in part, 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…

Suitable modified or alternate work is described in the Return to Work Policy as follows:

Suitable work is that which the worker is medically able to do, does not aggravate or enhance the injury, and will provide benefits to both the worker and the employer. Suitable work is permanent or transitional employment that takes into account the worker's pre-accident employment, aptitudes, skills, and what work is available. It also considers any safety concerns for the worker or co-workers.

To determine if the worker is medically able to perform suitable work, the WCB will compare the worker's compensable medical restrictions and capabilities to the demands of the work.

The Return to Work Policy further provides that:

…if there is a dispute about whether the modified or alternate duties are suitable, or whether a worker is medically able to perform the essential duties of the pre-accident job or suitable work, the WCB will make the final determination and may arrange for a worksite analysis.

WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the "Co-operation and Mitigation Policy"), elaborates on the responsibility of both workers and the WCB in ensuring compliance with section 22 of the Act, and 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.

Section D of the Co-operation and Mitigation Policy addresses the consequences of a worker's failure to mitigate, and provides, in part, that:

1. If the WCB determines that the worker has not complied with section 22 of the Act and the requirements of this policy, it may reduce or suspend the worker's compensation. Before taking this step, the WCB will consider whether the worker has a reasonable explanation for non-compliance. If the WCB considers the worker's explanation for non-compliance to be reasonable, it will not suspend or reduce the worker's compensation.

2. Before reducing or suspending compensation, the WCB will provide the injured worker with a reasonable opportunity to comply with his or her obligations under the Act and this policy.

Worker's Position

The worker was represented by a worker advisor and was provided with the assistance of sign language interpreters. The worker advisor provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from the worker advisor and from the panel.

The worker's position was that she is entitled to wage loss benefits from August 30, 2017 through to the end of September 2017 because her job duties aggravated her compensable injury and resulted in her physician's recommendation that she discontinue working.

The worker advisor submitted that the attending physician was correct to authorize time off work because the worker, who is deaf and is particularly reliant on the use of her hands and arms as her primary means of communication, was experiencing increased right elbow pain, with referral into her right shoulder and needed to rest her right arm in order to reduce her symptoms and recuperate. The worker advisor submitted that the job duties the WCB accepted as having caused a right elbow injury of lateral epicondylitis, also caused injury to the worker's right shoulder.

The worker advisor noted that the attending physician had warned the WCB in her reports and occupational assessment forms that the worker's job duties were aggravating her injuries, and had requested changes. In her mid-August report, the physician warned the WCB and the employer that without further changes in accommodation, the worker would require time off work. When changes did not happen and the worker's condition, particularly with respect to her elbow, continued to get worse, the physician removed the worker from work as of August 30, 2017 rather than risk any further deterioration.

The worker advisor submitted that time loss at that point was warranted, and that contrary to the WCB's position, total disability is not the standard by which wage loss benefits are payable. The worker advisor submitted that in accordance with the Return to Work Policy, the workplace accommodation which the worker was engaged in, particularly in the last two weeks of August, clinically aggravated her right elbow conditions and was not suitable.

The worker advisor noted that the WCB adjudicators viewed the situation very differently, and placed significant weight on the WCB's report of a worksite visit of November 29, 2018 in determining that the worker remained employable despite her accepted elbow injury. The worker advisor submitted that the process, where the worker was not invited to participate in this assessment of her duties, was procedurally unfair, and this was not remedied by the WCB having provided her with a copy of the completed report and having allowed her to comment on it. The worker advisor further referred to what, in their view, were flaws in the report, and submitted that to the extent the accommodated job duties performed in July and August 2017 might be a factor in deciding the appeal, the panel should attach the most weight to the worker's own description of her duties.

The worker advisor further submitted that the WCB did not give sufficient consideration to the worker's safety as it related to her reliance of both of her hands and arms as her primary source of communication. It was submitted that if a worker's ability to communicate is impaired by a compensable injury, or injuries, this raises safety concerns for the worker both inside and outside the workplace.

The worker advisor submitted that if the appeal panel were to conclude that the employer provided suitable work leading up to her being off work on August 30, 2017 and the worker had therefore not complied with section 22 of the Act, Section D of the Co-operation and Mitigation Policy would apply and the panel must consider the explanation for her non-compliance (i.e. that work was hurting her right arm and her doctor instructed her to take one month off to rest it). It was submitted that if the panel finds the worker's explanation to be reasonable, then the worker should receive full wage loss benefits for the period in question.

In conclusion, the worker advisor submitted that mitigating a loss of earning capacity should not have to come at the expense of the worker's pain and functional loss of her right arm and hand. It was further submitted that because the worker relied upon the use of her right arm and hand to communicate, and could not use only her left arm and hand to continue working, her time off was justified and her appeal should be granted.

Employer's Position

The employer was represented by its Disability Management Specialist, who made an oral presentation at the hearing and responded to questions from the panel.

The employer's position was that the modified duties which the worker was provided were suitable and within her restrictions, and her appeal should be dismissed.

The employer's representative stated that the modified duties involved putting corners on finished parts so they are not damaged in shipping. The corners are cardboard and of negligible weight. The representative noted that this was not assembly line work and there was no rushing involved. The worker would have been given a desk and a chair and been advised she could sit or stand at any time in that area. There was no quota, and the worker was told to work within her abilities and at her own pace.

The employer's representative submitted that this was one of the lightest duties in the plant. She noted that they have a return to work committee in the plant which was set up by the union, and the union was in support of the worker doing the corners. She said that they had five or six meetings with respect to this issue and at no time did the union indicate that this work was jeopardizing the worker in her return to work duties. The representative said that they had looked into the taping and to her knowledge, the worker was supplied with corners without tape on them. The representative said they discussed the possibility of moving the worker to another area, but did not see anything that was lighter and the worker was not willing to move to another area due to her issues with scents/allergies.

The employer's representative noted that the entire plant was on an annual shutdown from July 31 to August 13, 2017 and the worker was on vacation during that period of time. The representative stated that one would assume that the worker's symptoms might have improved during that time off. She further noted that as the plant had been shut down, production had not yet ramped up and work was slow when the worker returned from holidays.

In conclusion, it was submitted that the worker was provided with light modified duties which were suitable, and she is not entitled to wage loss benefits from August 30, 2017 to September 2017.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits for the period August 30, 2017 through to the end of September 2017. 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 between August 30, 2017 and the end of September 2017 as a result of her July 12, 2017 workplace incident. The panel is unable to make that finding, for the reasons that follow.

The worker has an accepted claim for right lateral epicondylitis. The worker has argued that her right lateral epicondylitis was aggravated by the modified duties she performed at work starting August 15, 2017.

Based on our review and consideration of all of the evidence and submissions which are before us, on file and as presented as the hearing, the panel is unable to accept that argument.

The evidence shows that the worker was away from work and on vacation for two weeks prior to returning to work on August 15, 2017. The worker indicated that the rest really helped, her symptoms settled and she felt good during that period of time. The worker reported, however, that within two hours of returning to work on August 15, her symptoms flared up significantly and her injury was re-aggravated. The panel is unable to accept that the worker's symptoms would have flared-up significantly, as described, within two hours after she had been off work for two weeks and her symptoms had settled. The panel notes in this regard, that the evidence shows the work was light or slow when she returned to work, as the plant had not yet ramped up following the shutdown. The panel also notes that the worker continued to work for two weeks after that, until August 30, 2017, which does not make sense if the flare-up of the worker's symptoms on August 15 was as bad as she had indicated.

The panel is further satisfied, based on the evidence, that the modified duties which the worker was performing in the last two weeks of August 2017 were very light in nature. With respect to putting cardboard corners on finished parts, the evidence is not disputed that the corners themselves were very light. The worker indicated at the hearing that she had to work with different parts of varying sizes, and would have to use both hands to apply the corners. The worker acknowledged that most of this work was done close to her body, although she would have to reach away from her body often.

At the hearing, the worker focused on taping as having affected her symptoms the most. The worker said that cardboard corners would come with tape still on them and she would have to "remove all that tape from those cardboard corners." Asked what work she felt affected her injuries the most during the last two weeks of August, the worker stated:

I would say ripping the…tape off or removing the tape from those cardboard corners because it happened but there was no way to do it just for one hand. I would be having to hold one, the cardboard corner and had to rip with the other hand. So removing the tape was probably the biggest issue for me. And then holding the cardboard, having to push the corner on as well.

Asked how much time she would spend taping or pulling off tape, the worker said it would depend and she could not say. While the worker described the tape as being very sticky "industrial" tape, the panel notes that in an October 16, memo to file of a meeting involving the employer and the worker, the WCB case manager indicated that during her visit to the plant she had removed tape and confirmed there was minimal force and the tape was not very sticky. The evidence also indicates that the finished parts which the worker was working with were all painted, and the panel is satisfied that the tape would not have been particularly sticky or difficult to remove.

The panel accepts that the worker had to use her right arm to perform her modified duties. The panel does not accept the suggestion, however, that the worker's limitations or restrictions would have included no use of her right arm. The panel noted that the worker's evidence that she would alternate hands when performing certain duties is inconsistent with any such suggestion.

The panel is further unable to establish that using her right arm in the performance of these duties aggravated the worker's compensable injury as claimed. As indicated above, the duties were not heavy. While the worker claimed that they were very repetitive, the panel is satisfied that the evidence indicates they were varied, that there was no quota and that the worker could take breaks as needed.

The worker advisor emphasized in his oral submission that their primary position was that as a deaf worker, the worker was particularly reliant on the full use of her hands and arms as her primary source of communication. The panel acknowledges that the worker uses her right arm and hand for signing, as her primary means of communicating.

While the worker advisor referred to concerns with safety, however, the panel is of the view, based on the evidence which is before us, that the modified duties which the worker was performing were not hazardous. The evidence also indicated that the deaf community workers were all supplied with a Blackberry or similar device to assist with communicating with the employer, as over 95% of the management staff on the floor was not trained in sign language.

The evidence further showed that the worker was not working on an assembly line but was basically working on her own when performing the modified duties, except when the quality control person was in the area doing their work. The worker also indicated that she had access to a computer and would spend time on the computer during the day, although this was not required to perform the modified duties.

Outside of work, the worker indicated that:

And signing, because I use my hand to sign, I would limit myself to communicating with friends and family for about an hour and I would just have to tell them I just can't communicate with them anymore, that I would have to stop and take a break. So everything was just kind of limited because of the pain that I was having. 

… 

My finger spelling was extremely sloppy so…people would be…having to ask me to repeat myself because they missed what I had said, and so I would have to then…go from my right dominance to my left, which is my non-dominate, and have to try and finger spell that way. And I could do that as well, which is fine…but again, it takes a little bit more work.

Finally, the panel notes that the worker has also argued that her workplace incident caused a right shoulder injury as well. The panel notes that the WCB has not accepted a right shoulder injury. The panel is unable to find that the medical evidence supports that the worker suffered a right shoulder injury as a result of her workplace injury or that her loss of earning capacity as of August 30, 2017 was the result of any such injury.

Based on the foregoing, the panel finds that the modified duties which the worker was performing in the last two weeks of August 2017 were within her limitations and restrictions and were suitable and appropriate and the worker's loss of earning capacity as of August 30, 2017 was not as a result of her workplace accident.

Further, the panel is unable to find, based on the evidence, that the worker has provided a reasonable explanation for not complying with her obligation under section 22 to take all reasonable steps to reduce or eliminate any loss of earnings resulting from her compensable injury.

The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity between August 30, 2017 and the end of September 2017 as a result of her July 12, 2017 workplace incident, and the worker is not entitled to wage loss benefits for that period of time.

The worker's appeal is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
J. Witiuk, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 5th day of February, 2021