Decision #100/21 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to wage loss benefits after September 28, 2018. A videoconference hearing was held on July 22, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after September 28, 2018.
The worker is not entitled to wage loss benefits after September 28, 2018.
This claim has been the subject of a previous appeal in Appeal Commission Decision No. 73/19, dated June 28, 2019. The background will therefore not be repeated in its entirety.
The WCB accepted the worker’s claim for a soft tissue injury to their right fifth finger that occurred as a result of a workplace accident on September 26, 2018. The worker attended for medical treatment the same day. The treating physician referred the worker for an x-ray and recommended they remain off work for one week as a fracture was suspected. An x-ray performed September 27, 2018 did not identify a fracture or a dislocation and the worker’s treating physician provided a diagnosis of a soft tissue injury and recommended the worker return to light duties on October 2, 2018.
When the worker discussed the claim with the WCB on September 28, 2018, they confirmed the employer informed them of their return to work program and the availability of one-handed work for them to perform; however, on September 27, 2018, the worker advised the employer they wanted to discuss the results of the x-ray with their treating physician prior to determining whether they could perform the offered modified duties. The WCB advised the worker despite the doctor’s note recommending they remain off work until October 2, 2018, their employer had offered reasonable accommodated duties and the WCB determined they were not totally disabled and could participate in those duties. This information was provided in a letter to the worker on September 28, 2018 in which the WCB advised the claim was accepted but the worker was not entitled to wage loss benefits after September 27, 2018.
On October 10, 2018, a Work Capabilities Analysis Form was provided to the WCB, completed by the worker’s treating family physician, indicating the worker could return to their full, regular duties with no restrictions as of October 9, 2018.
The worker requested Review Office reconsider the WCB’s decision they were not entitled to wage loss benefits after September 27, 2018. Review Office upheld the WCB’s decision on December 5, 2018 and the worker appealed to the Appeal Commission. On June 28, 2019, the Appeal Commission found the worker was entitled to wage loss benefits after September 27, 2018 and returned the file to WCB Compensation Services for further adjudication.
On August 20, 2019, the worker attended at the WCB and advised of a referral to a plastic surgeon for further treatment on their right fifth finger. In a Doctor First Report provided to the WCB on January 15, 2020 for the worker’s appointment with the plastic surgeon on December 17, 2019, the surgeon noted the worker’s report of stiffness and pain in their right little finger and after examining the worker, indicated tenodesis/arthrodesis in the right little finger and the proximal interphalangeal (PIP) joint was not passively correctable. The surgeon provided a diagnosis of a Boutonniere deformity in the worker’s right fifth finger and recommended surgery to correct it. The WCB obtained medical reports and chart notes from the worker’s treating healthcare providers and on April 21, 2020, authorized the surgery, approving the first stage of the proposed two-stage procedure.
The worker contacted the WCB on June 4, 2020 to advise of a delay in scheduling the surgery and that they were unable to bend their finger and it was very stiff. The worker further advised they were not working with the employer at that time and had other employment. On July 10, 2020, the WCB spoke with the worker’s treating plastic surgeon’s office who confirmed the worker had not booked the surgery but had requested to meet with the treating plastic surgeon again.
On July 21, 2020, the employer contacted the WCB for a status update on the worker’s file, advising the worker had not returned from a leave of absence on July 20, 2020 and had advised the employer they were seeking further medical attention to determine if they were able to return to work.
The WCB received a report dated July 22, 2020 from the plastic surgeon. The surgeon conducted an x-ray of the worker’s right little finger and opined in the report that the worker’s finger “…over the course of time has now fused in a position of 20 degrees flexion…”. The plastic surgeon advised the worker was aware of the permanent nature of their condition and had already arranged for different employment and was preparing to resign their position with the employer. The surgeon further advised the worker was no longer a candidate for surgery.
In a further conversation with the WCB on July 24, 2020, the worker confirmed the surgery was not proceeding and they had no further follow-up appointments scheduled. The worker also confirmed to the WCB that they were not working with the employer and had arranged other employment since January 2020, noting they had taken a leave of absence from the employer. The worker further advised they no longer wanted to work for the employer as they were not physically able to perform their job duties due to the compensable injury.
On September 2, 2020, the employer provided the WCB with a copy of a letter advising the worker their employment had been terminated effective July 27, 2020.
After gathering further information from the worker and the employer, the WCB advised the worker on December 31, 2020, they were not entitled to wage loss benefits after September 28, 2018. The WCB confirmed the worker was paid wage loss benefits for September 28, 2018, pursuant to Appeal Commission Decision No. 73/19, and that the worker returned to work on October 2, 2018 as set out in a note from their treating physician. Information had been provided by their employer that October 1, 2018 was a “production down day”, with workers not scheduled to work that day. The WCB further advised the employer had provided the worker with suitable accommodated duties, with the worker performing their full regular duties from October 8, 2018 up until May 5, 2019, when the worker began a leave of absence.
The worker requested reconsideration of the WCB’s decision to Review Office on January 13, 2021 noting in their submission they continued to suffer the effects of the workplace injury and their belief the WCB did not consider their entitlement to wage loss benefits after their employment ended with the employer. On February 23, 2021, the employer provided a submission in support of the WCB’s decision, a copy of which was provided to the worker on the same date.
Review Office found on March 10, 2021 that the worker was not entitled to wage loss benefits after September 28, 2018. Review Office noted the worker had advised the WCB on several occasions they had obtained different employment and did not intend to return to work for the employer after their leave of absence ended. Review Office could not establish the worker had a loss of earning capacity as there was no relationship between the worker’s loss of employment with the employer and their compensable injury. The worker provided further information to Review Office on March 16, 2021 and on the same date, Review Office confirmed to the worker the March 10, 2021 decision remained unchanged.
The worker filed an appeal with the Appeal Commission on March 31, 2021. A videoconference hearing was arranged for July 22, 2021.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.
A worker is entitled to benefits under s 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under s 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.
When the WCB determines that a worker has sustained a loss of earning capacity, an impairment or requires medical aid as a result of an accident, compensation is payable under s 37 of the Act. With regard to wage loss benefits, s 39(2) of the Act sets out that such benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years.
The worker appeared in the hearing and made oral submissions to the panel, as well as responding to questions posed by members of the appeal panel.
The worker’s position is that they are entitled to further benefits beyond September 28, 2018 as the evidence confirms the worker’s injury is not properly healed and continues to impair the worker. Further, the worker noted that they have experienced a loss of earning capacity as a result of being dismissed from the accident employer in July 2020.
The worker outlined to the panel the history of their claim arising out of the workplace injury to their right fifth finger on September 26, 2018. The worker confirmed to the panel that they returned to work after the injury on light duties as of October 2, 2018 until medically cleared for regular duties as of October 9, 2018. The worker continued with their regular duties from that time until May 2019 when the worker took a leave of absence from that employment for reasons unrelated to the workplace injury.
The worker clarified in response to questions from panel members that the benefits they are seeking are for wage loss as of July 20, 2020, being the conclusion of the leave of absence that commenced in May 2019. The worker outlined their belief that they were terminated by the accident employer as of July 27, 2020 as a result of information the WCB case manager provided to the employer on July 21, 2020 regarding the worker having another job.
The worker stated they did not return to work on July 20, 2020 at the conclusion of their leave of absence but advised the employer at that time they were waiting to see their doctor on July 22, 2020. No medical note was provided to the employer at that time, nor thereafter. The medical records confirm the worker had a medical appointment with a surgical specialist on July 22, 2020 and the worker testified they were awaiting the outcome of that assessment with respect to ability to return to work. The worker noted they had been approved for surgery to correct the Boutonniere deformity in the right fifth finger and that the surgeon suggested that the worker not return to warehouse work.
The worker further explained to the panel that they had a second job with another employer to supplement their income since October 2018, just after the compensable accident and that they were able to continue with that employment after the accident as the job duties were sedentary and did not require use of the worker’s right hand. The worker indicated that the WCB case manager misunderstood that this was an alternate job to the accident employment; rather, it was an additional job that the worker undertook outside of their hours of employment with the accident employer.
The worker urged the panel to consider the fact that the hearing proceeded by videoconference rather than in person due to the pandemic and that this reduced the panel’s ability to see the degree of the worker’s right fifth finger impairment. Further, the worker noted challenges they face as an immigrant to Canada including communication challenges and asked that the panel take that into account.
In sum, the worker’s position is that they should be entitled to further wage loss benefits after September 28, 2018 as they continue to suffer the effects of the injury sustained in the workplace accident of September 26, 2018 and have experienced a loss of earnings as a result.
The employer participated in the hearing through provision of a written submission to the Appeal Panel, provided in advance of the hearing and shared with the worker but did not attend the hearing.
In the written submission of July 1, 2021, the employer set out that its position on the issue under appeal remains as provided to the Review Office in writing dated February 22, 2021. The employer is of the view that the Review Office decision is correct and that the evidence does not support that the worker is entitled to benefits after September 28, 2018.
In the submission to Review Office of February 22, 2021 the employer provided a chronology of the events following the injury noting the following:
• The employer had a production down day on October 1, 2018 and all employees had option to take the day without pay or use vacation or attendance reward hours.
• The worker returned to light duties on October 2, 2018 which were performed until October 9, 2018.
• The worker provided confirmation on October 10, 2018 of their ability to return to regular duties and hours without restriction.
• The worker was on a leave of absence unrelated to the workplace accident from May 6, 2019 through July 19, 2020.
• The worker was scheduled to return to work July 20, 2020 but advised the employer by telephone of a medical appointment scheduled for July 22, 2020 and that they would provide medical documentation to substantiate not being able to return to work.
• On July 24, 2020 the WCB advised the employer that the worker had obtained other employment and did not plan to return to work. The employer then advised the worker by email that given the failure to return to work following the leave and the absence of medical documentation to support an inability to work, it would be assumed that the worker had resigned if they did not report to work on July 28, 2020.
• As of July 27, 2020 the worker exceeded three days of unexcused absence and did not provide any documentation to support that absence; therefore, the employer determined the worker had abandoned their job and the employment was terminated.
On this basis, the employer’s position is that the evidence does not support any entitlement to wage loss benefits beyond September 28, 2018.
The issue on appeal is whether the worker is entitled to wage loss benefits after September 28, 2018. In order to grant the appeal, the panel would have to determine that the worker sustained a loss of earning capacity beyond that date as a result of the compensable injury. For the reasons that follow, the panel was not able to make such a finding.
The Act clearly provides that when a worker has sustained a loss of earning capacity due to injury resulting from an accident, wage loss benefits are payable until the loss of earning capacity ends or the worker reaches 65 years of age, whichever is sooner.
In light of the worker’s assertion that they were unable to return to their pre-accident employment at the conclusion of their leave of absence on July 20, 2020 due to the ongoing disability resulting from the compensable injury, the panel considered the medical evidence as to the nature and extent of the worker’s disability at that time. The worker’s right fifth finger was assessed by the treating plastic surgeon on July 22, 2020. The surgeon reported to the WCB in a letter provided to the WCB on July 30, 2020 as follows:
“This will update you on the above-named patient who we saw this morning on the 22nd of July, 2020. [They return] 2 years post fracture/dislocation of the right little finger which over the course of time has now fused in a position of 20 degrees flexion as documented on the x-ray done today. A copy of this x-ray will be sent to you as well. The patient is aware of the permanent nature of the joint condition and ... is willing to be relocated to a different job as [they have] already arranged as a health support worker. Therefore [they are] going to resign [their] position at [the employer.] There will be no further need for followup as [they are] no longer considered a surgical candidate.”
The plastic surgeon saw the worker previous to that appointment on June 2, 2020 and in the surgeon’s July 14, 2020 report to the WCB noted the worker had “never quit” regular duties and was capable of alternate or modified work but would need “6 weeks of respite post op”, referring to the planned surgery to correct the chronic Boutonniere deformity on the worker’s right fifth finger at the PIP joint. This surgery was recommended by the plastic surgeon in December 2019, to take place in two phases and on April 20, 2020 the WCB approved the first stage of that procedure.
The panel noted the plastic surgeon did not at any time provide the worker or communicate with the WCB as to any restrictions or limitations in terms of the worker’s employment activities and was aware the worker intended to continue to work at their additional job.
The panel also reviewed the prior medical reporting from the period immediately following the workplace injury in 2018, and the information from 2019 that ultimately led to the referral to the plastic surgeon. None of these reports provide any evidence that the worker is disabled from any or all work beyond September 28, 2018. There is no medical reporting to evidence any restrictions or further disability after the worker’s treating family physician stated on October 9, 2018 that the worker was capable of returning to their pre-accident duties without restriction.
The evidence of the worker is that they did not return to their job with the employer upon conclusion of the leave of absence, and further that they did not provide any medical evidence to support that they were unable to return to their regular duties. This is confirmed by the employer’s submissions and information on file.
While the worker attributes the termination of the employment relationship resulting in a loss of earning capacity after July 20, 2020 to the fact the employer became aware that the worker had other employment, there is a lack of evidence to support this conclusion. Rather, the evidence before us supports a finding that the worker’s employment was terminated when the worker failed to attend work and failed to provide the employer with any medical note that would support the worker’s absence.
Further, there is a lack of evidence that the worker was physically unable to return to their pre-accident employment at any time after September 28, 2018 as a result of the compensable workplace injury of September 26, 2018. The panel therefore finds that any loss of earning capacity beyond that date is not causally related to the compensable injury.
With respect to the additional considerations the worker raised in the hearing, given the use of videoconferencing and the medical information contained in the WCB file, as well as the absence of any conflicting medical evidence as to the condition of the worker’s right fifth finger, the panel is satisfied with the available information as to the condition of the worker’s finger and does not find that the worker was prejudiced by the unavailability of an in-person hearing. Further, although the worker pointed to challenges they faced as an immigrant to Canada including communication difficulties in particular, the panel did not find that communication to be a concern as the worker ably demonstrated their capability in advocating for themselves in the hearing.
On the basis of the totality of the evidence before us and on the standard of a balance of probabilities, the panel determines that the worker is not entitled to wage loss benefits after September 28, 2018. The worker’s appeal is denied.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of August, 2021