Decision #113/21 - 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 effective September 18, 2020. A videoconference hearing was held on July 29, 2021 to consider the worker's appeal.
Whether or not the worker is entitled to wage loss benefits after September 17, 2020.
That the worker is not entitled to wage loss benefits after September 17, 2020.
The employer filed an Employer's Incident Report with the WCB on June 24, 2020, reporting the worker jammed his left little finger "…while engaging in physical activity…" at work on May 28, 2020. The worker carried on with his normal activities, but "…swelling and deformity persisted" in the following days, and he reported the injury to his employer on June 12, 2020.
The worker sought treatment at a local emergency department on June 17, 2020. He reported that he injured his finger on May 28, 2020 and continued to have pain and swelling to the area. He indicated he was unable to straighten his finger and had an obvious deformity, and believed his finger was dislocated. The treating physician noted an "Obvious Boutonniere deformity" and referred the worker to a plastic surgeon, querying a flexor tendon rupture of the left little finger. The worker was seen at the plastic surgery emergency clinic on June 18, 2020, where he was diagnosed with a left little finger central slip avulsion/injury and was placed in a splint. A referral for occupational therapy was provided.
At the worker's initial occupational therapy assessment on June 24, 2020, the worker reported decreased functional use of his left non-dominant hand due to having to wear a splint to keep his finger immobilized and a high pain level when moving his left hand. The treating therapist noted the worker's left little finger was to remain in a splint to keep the proximal interphalangeal (PIP) joint immobilized in extension for a minimum of six weeks. Restrictions of wearing the splint at all times, no heavy lifting or forceful gripping and limiting repetitive use of the left hand were provided.
At a follow-up appointment on July 23, 2020, the treating plastic surgeon noted the worker was off work for now but could do right-handed work and light work with his left hand such as typing. The surgeon noted the worker's finger had been in the splint for five weeks, would remain in the splint for one more week, then be reassessed. On August 13, 2020, the treating plastic surgeon noted that the worker was making progress out of the splint but was not back at work yet. At a reassessment with the occupational therapist on August 19, 2020, the therapist noted that flexion in the worker's left little finger was improved, that there was tenderness in the dorsal lateral DIP (distal interphalangeal) joint region, and soreness in the PIP joint which increased with exercise. The therapist recommended the worker could use his left hand as an occasional light assist, with no forceful gripping or heavy lifting yet.
On August 24, 2020, the worker attended an initial physiotherapy assessment. The physiotherapist noted the worker's complaints of pain in his little finger with exercises, an inability to fully bend his finger and limited grip. Range of motion testing was conducted and the physiotherapist noted moderate edema at the PIP joint. The physiotherapist diagnosed the worker with a left little finger central slip avulsion, and recommended the worker was capable of alternate or modified work with restrictions of using his left hand for light assist only and no heavy lift or tight gripping with his left hand. On September 9, 2020, the physiotherapist updated the worker's restrictions to a maximum lift of 20 pounds, no tight grip with the left hand and intermittent splint use throughout the day.
On September 18, 2020, the employer advised the WCB that they had offered the worker modified duties on September 17, 2020 which were within the restrictions provided by the treating physiotherapist and the worker had not responded to the offer. On September 23, 2020, the WCB spoke with the worker regarding the offer of modified duties from the employer. The worker advised he had spoken to the employer and noted concern with the accommodation offered by the employer with respect to exposing himself to an increased risk of contracting Covid-19 and had requested a work from home accommodation. The worker stated that he and his family did not have increased risk factors related to Covid-19, he just had general concerns. The worker acknowledged the employer had offered suitable accommodated duties and his decision not to participate in those duties was based on medical concerns which were not related to his claim or compensable injury. The WCB advised the worker that as he had decided not to participate in the modified duties which were offered by the employer on September 17, 2020, he would not be entitled to wage loss benefits beyond that date.
At a further appointment at the plastic surgery clinic on September 24, 2020, the worker received an injection in his little finger and the treating plastic surgeon advised he could return to work on light duties. The employer advised the WCB the worker returned to work on accommodated duties on September 28, 2020. On October 7, 2020, the worker's physiotherapist advised that the worker could return to his full regular duties on October 12, 2020.
In a discussion with the WCB case manager on October 13, 2020, the worker confirmed he returned to his full duties on October 12, 2020 and felt about 90% recovered. The worker advised the WCB case manager he continued to participate in physiotherapy and to follow-up with the plastic surgeon on a regular basis. The worker requested clarification from the WCB case manager with respect to the work from home accommodation he had requested, and the case manager advised the worker he had been offered suitable accommodated duties within his restrictions, so the WCB expected him to attend. As he did not attend suitable offered accommodation, there was no entitlement to wage loss benefits beyond September 17, 2020. By letter dated October 14, 2020, the WCB confirmed their decision that the worker was not entitled to wage loss benefits beyond September 17, 2020.
On November 20, 2020, the worker requested that Review Office reconsider the WCB's decision. The worker submitted that his concerns over possible exposure to Covid-19 were justified and his request to work from home was reasonable. On January 12, 2021, the employer provided a submission in support of the WCB's decision to deny wage loss benefits beyond September 17, 2020, and the worker provided a response to the employer's submission on January 25, 2021.
On January 28, 2021, Review Office determined that there was no entitlement to wage loss benefits effective September 18, 2020. Review Office found that the worker was notified of his responsibilities to mitigate the effects of his injury, which included participating in a suitable return to work program, and that failure to comply could impact his entitlement to benefits. Review Office found that the alternate duties offered by the employer effective September 18, 2020 were appropriate and within the worker's restrictions, and would have eliminated the loss of earning capacity related to the injury. Review Office noted that the worker commenced the workplace accommodation on September 28, 2020, with no concerns related to the duties, the compensable restrictions and the workplace environment. Review Office therefore concluded that the worker was not entitled to wage loss benefits effective September 18, 2020, as a suitable workplace accommodation was offered, but declined by the worker.
On February 4, 2021, the worker appealed the Review Office decision to the Appeal Commission and a videoconference hearing was arranged.
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(2) of the Act 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;
(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.
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…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.
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.
WCB Policy 220.127.116.11, 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, in part, 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:
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.
The worker was self-represented. The worker made an oral presentation at the hearing, in which he referred the panel to his submissions to Review Office, particularly his January 25, 2021 response to the employer's submission, and summarized his position on the appeal.
The worker's position was that his concerns about working light duties during a pandemic and his request to work from home were not adequately addressed or entertained as a possibility, and he should be entitled to wage loss benefits effective September 18, 2020.
On September 18, 2020, the worker stated that he requested of the employer that he be able to work from home due to concerns of being exposed to Covid-19, but was told that they did not have work from home options for him. The employer agreed he could talk to the WCB with respect to other available options, and he tried to get in touch with his WCB adjudicator that same day, to ask about working from home, but was not able to get through to him until September 23, 2020.
The worker submitted that his request to work from home was reasonable and should have been accommodated. He noted that working from home was considered the safest option and everyone seemed to be doing so. He said he knew arrangements had been made where others in his line of work who were on WCB were given an exemption or did not have to go into the office for light duties.
The worker stated he did not believe his concerns over Covid-19 were taken seriously enough by the employer or the WCB, or that either of them made an attempt to see if there was work he could do from home. He noted that his line of work involves essential services and could obviously not be done from home, but that was not the case with the light duties he was given. The light duties were at the training facility, and in his view it was not worth the risk at that time of going into work at that facility. The worker noted that when he finally went to work at the facility, on September 28, 2020, there was limited work and it would definitely not have been considered to be of an essential nature.
The worker submitted that in any event, he should have been given a proper opportunity to voice his concerns. He said he tried to contact the adjudicator on September 18, 21 and 22, 2020, without success. When he finally got hold of the adjudicator on September 23, 2020, the adjudicator retroactively said he was not entitled to wage loss benefits back to the previous Friday, September 18, 2020. The worker submitted that it was unfair that his benefits would be docked retroactively when he had not yet been able to discuss his concerns or his request for work from home.
In conclusion, the worker submitted that Covid-19 was something new which had to be taken into consideration. In his view, the point was not whether the employer fulfilled their mandated obligations, but that in a pandemic everyone has to adapt. A lot of people were working from home and he believed his request to do so was appropriate. He did not believe it was worth the risk of going to work for light duties at an alternate facility during the pandemic. Precautions could be taken, but it was important to mitigate the risk of exposure as much as possible, which he was trying to do.
The employer was represented by its Workers Compensation Coordinator, who provided a written submission in advance of the hearing. The employer's representative made an oral submission at the hearing, in which he referred the panel to, and supplemented, his submission to Review Office dated January 12, 2021.
The employer's position was that they were in agreement with the decisions by Compensation Services and Review Office that the worker was not entitled to wage loss beyond September 17, 2020.
The employer's representative submitted that the Act and WCB policies provide that the employer need only make reasonable accommodation for the worker. The employer identified and offered appropriate and reasonable accommodation, fully respecting the worker's compensable restrictions. The offer was communicated to the worker by the employer, but the worker chose not to participate in the accommodation initially.
The employer's representative noted that the worker was notified of his responsibilities at the time his claim was accepted, including his responsibilities under section 22 of the Act dealing with mitigation. There was no indication the worker sought clarification of his responsibilities, and it was reasonable to conclude that he fully understood his obligations at that time.
It was submitted that despite the worker's insistence that he be provided with accommodation from home, there was no obligation under the Act or policy or other legislation for the employer to do so once they had identified workplace accommodation which had been deemed appropriate by the WCB. The representative stated that he believed there was some indication from the employer that there was no ability to provide the worker with work from home at that time. He went on to add that even if there was, the employer had no obligation to move forward on the return to work from home issue as long as they had fulfilled their obligation to offer the worker a reasonable work accommodation.
The employer's representative submitted that after expressing to the WCB on September 23, 2020 that he was concerned with respect to the offered accommodation, the worker returned to that specific accommodation effective September 28, 2020, and worked there for three weeks, until resuming his full regular duties at his regular workplace on October 12, 2020. The representative submitted that if the worker was so concerned that he did not want to return to work in that environment, why did he go back and work in that same environment one week later, before returning to his regular duties. The representative submitted that there was no greater risk when the worker was at the training facility or in an administrative setting than when he was working in his regular workplace.
The employer's representative submitted that whether other employees were able to work at home or not was not relevant. He noted that claims are all case specific, and determinations are made based on the merits of each individual situation. He submitted that in this case, the decision that the worker was not entitled to wage loss benefits beyond September 17, 2020 was justified by the information on file.
In conclusion, the employer's representative submitted that the employer met all of their obligations under the Act and policies. They had no obligation to go beyond that, and accommodate the worker's "wants" or preferences once appropriate medical restrictions were established and appropriate alternate duties identified for the worker. The worker had the option not to accept those alternate duties, but there were ramifications if he decided not to do them.
The issue before the panel is whether or not the worker is entitled to wage loss benefits after September 17, 2020. 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 after September 17, 2020 as a result of his May 28, 2020 workplace incident. For the reasons that follow, the panel is unable to make that finding.
At the outset, the panel notes that the worker confirmed at the hearing that the issue on appeal concerned unpaid wage loss benefits for a total of four days, namely Friday, September 18, 2020 and Wednesday, September 23 to Friday, September 25, 2020. The worker noted that lost wages on Monday, September 21 and Tuesday, September 22, 2020 were not at issue, as he had an unrelated medical appointment on September 21, for which he used sick time, and another unrelated appointment on September 22, for which he used vacation time. The information showed that the worker returned to work performing modified duties on September 28, 2020.
Based on our review of all of the information and submissions on file, and as presented at the hearing, the panel is unable to find that the evidence supports that the worker could not attend the alternate duties starting September 18, 2020. The panel is further unable to find that the worker had a reasonable explanation for not attending the alternate duties offered starting September 18, 2020.
In arriving at those conclusions, the panel notes that the worker stated at the hearing that he did not disagree the employer had met their obligations under the Act and WCB policies. The worker added, however, that that was not the point. In his view, the point was that Covid-19 was something new, that in the pandemic everyone had to make adjustments or adaptations, but the employer and the WCB did not even consider this and just said no to his request.
The panel places weight on the memorandum of the WCB adjudicator's conversation with the worker on September 23, 2020, where the adjudicator noted to the worker that he had received multiple emails regarding an offer of modified duties and the worker's "decision to decline to participate" and the "worker confirmed this to be correct." The memo went on to document that the worker stated:
…he had requested a work from home accommodation on September 18, after the offer of modified duties had been presented. He stated that he was concerned with returning to the accommodations that had been arranged due to covid-19. He does not feel that the work that is being offered is important enough to expose himself to increased risk of contracting covid-19. I asked him if this was because he has increased risk factors for himself or his family and he stated no, it was just general concern.
We then had an extensive conversation about the return to work program, and the obligations of all parties involved. Worker acknowledged that were it not for covid-19, he would have accepted the accommodations. He was also able to acknowledge that the employer had fulfilled their obligation to provide a safe and suitable accommodation to return to work on September 17 as it related to his injury. His decision not to participate is strictly related to medical concerns that are not related to the claim or the compensable injury…
As such, he is going to elect to use time from his sick bank until he is cleared for regular duties.
The worker had an obligation under the Act to take all reasonable steps to reduce or eliminate any loss of earnings resulting from his workplace injury. While the worker was of the view that it was safest for him to work from home, the panel is of the view that the evidence shows that the alternate duties which the employer had identified were suitable and appropriate in the circumstances. As indicated in the above passage, the worker was relying on a general concern of being exposed to an increased risk of contracting Covid-19, and did not attend or attempt to perform the alternate duties prior to September 28, 2020.
The evidence shows, and the worker confirmed at the hearing, that he had been cleared for light duties and was capable of performing the light duties that were offered. When it was put to the worker at the hearing that his physiotherapist had cleared him for light duties on August 19 and 24 and September 9, 2020, the worker agreed, stating: "Yes, I don't think there's any question about that…I could definitely do the work, there wasn't a problem with that."
The evidence further supports that adjustments had been made and protections were in place at the training facility the worker was to attend. When questioned at the hearing as to what accommodations had been made and whether Covid-19 protocols were in place, the employer's representative stated that "…at that given point in time, personal protective equipment would have been provided. There would have been information with respect to social distancing in the workplace, things like masks or gloves if required, and such would have been there…There would have been a full Covid protocol to the extent that Workplace Safety and Health had deemed it appropriate." When the worker was asked whether those protocols were in place at the location when he attended on the September 28, 2020, the worker said "Yes, yes they were in place."
The panel recognizes that the worker would have preferred to work from home, as being what was safest, but is unable to find that his preference in that regard was a reasonable explanation for not complying with his obligations under the Act and WCB policies or that the employer was obligated to accommodate that preference.
The worker also suggested that he should have been given time to weigh his options and to discuss them with his WCB adjudicator. While the worker was entitled to weigh his options, the panel is satisfied that the worker had been made aware of his obligations and does not accept that he was entitled to be paid wage loss benefits while he did so.
The panel therefore finds, on a balance of probabilities, that the worker did not suffer a loss of earning capacity after September 17, 2020 as a result of his May 28, 2020 workplace incident. The worker is therefore not entitled to wage loss benefits after September 17, 2020.
The worker's appeal is dismissed.
M. L. Harrison, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner
Recording Secretary, J. Lee
M. L. Harrison - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 27th day of September, 2021