The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to full wage loss benefits effective January 5, 2021 in relation to their right upper extremity injury. A hearing was held on May 17, 2022 to consider the appeal.

Issue

Whether or not the worker is entitled to full wage loss benefits effective January 5, 2021 in relation to their right upper extremity injury.

Decision

The worker is entitled to full wage loss benefits effective January 24, 2021 in relation to their right upper extremity injury.

Background

In the Worker Incident Report provided to the WCB on January 25, 2021, the worker reported an injury to their lower right arm and wrist on October 15, 2020. The worker described the onset of pain in their right lower arm while at work that date, with continued pain and swelling the following day, when they sought medical attention. The worker stated their family physician told them they had "swollen tendons". The worker continued to work at regular duties and noted with an increased workload by December 2020, their symptoms increased with the pain spreading lower down their arm and into their wrist and thumb. The worker reported having "…severe jolts of pain when I turned my wrist and when I would try to grasp things in my hand." The worker advised they then sought medical treatment from a sports medicine physician who diagnosed tenosynovitis and prescribed bracing and physiotherapy. Restrictions were provided and the worker returned to work on January 4, 2021.

The Doctor First Report for the worker's appointment on December 31, 2020 with a sports medicine physician sets out that the worker reported to the triage nurse that in approximately mid-October 2020, they had some swelling to their right distal forearm but could not relate it to a specific incident. The worker further reported they saw their treating family physician who diagnosed swollen tendons and were seeking further treatment due to ongoing pain that had spread to their right wrist and thumb, and increased swelling, after work in particular. On examining the worker, the sports medicine physician noted:

Mild prominence over [their] right forearm intersection. No redness or warmth. Full fist closure. Good range of motion wrist. Good range of motion elbow, including pronation and supination. …well localized tenderness over the intersection, more significant on the proximal side. Finkelstein's reproduces proximal pain. [The worker] also has aggravation of [their] index pain with passive wrist flexion and forearm pronation with the elbow extended. Neurovascular intact.

The physician provided a diagnosis of intersection syndrome and recommended bracing and physiotherapy with a certified hand therapist. The physician also outlined restrictions of wearing the brace, avoiding repetitive activities with the right hand and maximum lifting of 5 pounds, for four weeks.

At follow-up with the worker on January 27, 2021, the sports medicine physician noted the worker had only minimal improvement in their symptoms and the attempt at modified duties did not go well with the worker experiencing difficulties with their left arm and shoulder and off work since January 5, 2021. The physician further noted the worker's report of "…symptoms at the intersection and the radial styloid of the wrist. Both arm and hand movement provoke …pain." The physician updated the worker’s diagnosis to intersection syndrome and de Quervain's tenosynovitis and recommended the worker remain off work, continued bracing and physiotherapy.

On February 4, 2021, the WCB contacted the worker to discuss the claim. The worker described swelling, soreness and pain in their right forearm and right wrist around the thumb which spread towards their baby finger and how motions such as turning a doorknob or grasping a small or thin item produced pain from their wrist into their upper arm. The worker advised the WCB their symptoms started around October 15, 2020 with swelling and progressed to swelling and soreness in their forearm, then spread to their wrist and hand. The worker provided a description of their job duties and advised they had been in their current position for four or five years. The worker also provided a chronology of their medical treatment and related their difficulties to the repetitive twisting of their wrists and hands while performing their job duties.

The employer provided an Employer's Accident Report to the WCB on February 8, 2021. In that report, the employer indicated the worker reported having pain in their right wrist and thumb from repetitive movement since approximately October 2020. The employer confirmed the worker attended for medical treatment on December 31, 2020 and was provided with restrictions, and that the worker performed the modified duties but could not continue due to increased symptoms. The employer confirmed the worker had not worked since January 5, 2021.

On February 16, 2021, the WCB received communication from the employer setting out concerns with the worker's claim. The employer noted the worker attributed their right wrist/thumb pain to their regular work duties and that they had worked a lot of overtime prior to and including December 2020; however, the employer advised the WCB the overtime was voluntary and not forced by them. The employer also provided the WCB with a description of the worker's duties and noted their belief those duties did not require high force, repetitive activities with the worker's wrist "…such as twisting, gripping, pulling, pinch pressure as well as repetitive wrist flexion/extension." The employer also advised they could not "…identify awkward joint positions, direct pressure, and sustained maximal gripping force or prolonged or constrained posture in any of [the worker's] duties…” and could not identify a cause-and-effect relationship between the worker's job duties and the reported difficulties.

A WCB medical advisor reviewed the worker's file on March 3, 2021 and provided an opinion that the worker's diagnosis was right wrist intersection syndrome, which was supported by the medical findings of the worker's treating sports medicine physician and physiotherapist. The WCB medical advisor went on to note that "Repetitive extension movement of the wrist with forceful grasping (ie. rowing or weightlifting) is the causative activity. A less forceful activity would require longer duration, continuous, higher frequency repetition to cause this condition", and indicated the normal recovery period was one to six weeks with medium duties. The medical advisor also noted that physiotherapy, bracing and steroid injections were appropriate treatment.

On March 9, 2021, the WCB spoke with the worker to gather further information regarding their job duties and on March 11, 2021, the employer provided the WCB with the worker's job description. On March 11, 2021, the WCB advised the employer the worker's claim was acceptable based on the WCB medical advisor’s review of the worker's file and a determination that the development of the worker's current difficulties was consistent with the worker's job duties.

In response to a query by the WCB, the employer advised on March 11, 2021 that an attempt to accommodate the worker with modified duties of working with their opposite, non-injured hand, was made on January 4, 2021 but the worker advised they could not perform the duties and requested to be placed into the employer's disability program.

When the worker followed-up with the sports medicine physician on March 26, 2021, the physician noted the worker's report of slow improvement and recommended restrictions of sedentary work with minimal use of the right arm/hand and not to grasp, lift or do repetitive activity.

On April 7, 2021, the WCB spoke with the worker to discuss the modified duties offer by the employer. The worker confirmed they were provided with restrictions in December 2020 and the employer provided they could perform their duties with their brace and when that proved to be difficult for the worker, the employer suggested the worker could use their left hand. The WCB advised the worker that as the employer had offered suitable accommodated duties within the restrictions provided by the treating healthcare providers, the WCB was unable to provide wage loss benefits. The WCB provided the worker with a formal decision letter on April 8, 2021 advising they were not entitled to wage loss benefits after January 4, 2021. On April 9, 2021, the employer was provided with the worker's updated restrictions of sedentary duties and no repetitive grasping, pinch grip, and twisting with the right hand/wrist. On April 16, 2021, the employer confirmed they could accommodate the worker and the worker returned to work on April 19, 2021.

On April 22, 2021, the employer requested reconsideration of the WCB's decision to accept the worker's claim to Review Office. The employer indicated their position that the worker's job duties did not:

"…require high force repetitive activity involving motions of the wrist such as twisting, gripping, pulling, pinch pressure as well as repetitive wrist flexion/extension. We cannot identify awkward joint positions, direct pressure, and sustained maximal gripping force or prolonged/ constrained posture in any of [the worker's] duties either. The duties are not continuous or without variation or rest breaks."

The employer went on to provide the worker's job duties were not frequent or forceful and that there were many interruptions throughout the worker's shift that would allow for recovery breaks from the previous task.

The worker attended for a follow-up appointment with the treating sports medicine physician on April 23, 2021. The physician noted the worker had returned to work with restrictions and found that the worker's symptoms were improving. The physician recommended the worker wean themselves from wearing the brace and begin, on a gradual basis, performing their job duties with their right hand. A lifting restriction of 5 kilograms continued. At a follow-up physiotherapy appointment on April 28, 2021, the treating physiotherapist agreed with the restrictions recommended by the treating sports medicine physician.

A WCB medical advisor reviewed the worker's file on April 28, 2021, concluding the worker's current diagnosis was resolved right wrist intersection syndrome and agreeing with the restrictions provided by the worker's treating healthcare providers with all restrictions to be removed after four weeks.

The worker's representative provided a submission to Review Office on May 19, 2021 in support of the worker's claim acceptance. The representative noted the worker's description of their job duties along with the medical evidence from their treating healthcare providers supports the decision that the worker sustained injury as a result of a workplace accident. On May 27, 2021, the WCB advised the worker based on the medical report provided by their treating sports medicine physician on May 21, 2021, they were fit to resume their full regular duties effective May 22, 2021 and their entitlement to wage loss and medical aid benefits would end as of June 25, 2021.

On June 17, 2021, Review Office determined the worker's claim was acceptable. Review Office accepted the worker's evidence of how they performed their job duties, along with the increase in their workload and found that led to the cumulative right wrist/thumb injury.

On August 31, 2021, the worker's representative requested reconsideration of the WCB's decision the worker was not entitled to wage loss benefits after January 5, 2021 to Review Office. The representative submitted the worker had followed their treating healthcare provider's recommendation to remain off work, the employer had not provided suitable modified duties until April 18, 2021 and the WCB had not directed the worker to return to the duties offered by the employer. On October 23, 2021, the employer provided a submission in support of the WCB's decision and the worker's representative provided a response on November 15, 2021.

Review Office determined on November 16, 2021 that the worker was not entitled to full wage loss benefits effective January 5, 2021 for their right upper extremity injury. Review Office found the employer had offered and provided accommodated duties that were within the worker's restrictions at the time and that the worker had attempted. Review Office noted the worker did not attempt to return to work even after additional restriction forms were provided and completed.

The worker's representative appealed the Review Office decision that the worker was not entitled to full wage loss benefits effective January 5, 2021 to the Appeal Commission on November 25, 2021 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

As the worker was employed by a federal government agency or department, their claim is adjudicated under the Government Employees Compensation Act (the "GECA"). Section 4(1) of the GECA provides that an employee who is caused personal injury by an accident arising out of and in the course of their employment is entitled to compensation. "Accident" is defined in s 2 of the GECA to include "a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause." Section 4(2)(a) of the GECA provides that a federal government employee in Manitoba is to receive compensation at the same rate and under the same conditions as a worker who is covered under The Workers Compensation Act (the "Act").

The Appeal Commission and its panels are bound by the provisions of the Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act in effect as of the date of the worker’s accident are applicable.

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 because of an accident, compensation is payable under s 37 of the Act. Section 39(2) of the Act sets out that wage loss benefits are payable until the worker's loss of earning capacity ends or the worker attains the age of 65 years. Medical aid is provided for under s 27 of the Act which states that the WCB may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Section 22 of the Act outlines the nature of a worker’s duty to mitigate and permits the WCB to reduce or discontinue benefits if it determines a worker has not met their obligations 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.”

Worker’s Position

The worker appeared in the hearing represented by a worker advisor. The worker advisor provided an oral submission in support of the worker’s appeal and also relied upon the previous written submissions made to the Review Office dated August 31, 2021 and November 12, 2021. The worker offered testimony in response to questions posed by the worker advisor and by members of the appeal panel.

The worker’s position as outlined by the worker advisor is that after the worker attempted a return to modified duties on January 4, 2021 in accordance with the restrictions outlined by their treating physician on assessment of the workplace injury, the worker was not able to complete the offered duties without difficulty and on advising the employer of their difficulties, was provided with a short-term disability insurance application, and advised there were no other modified duties available. The worker therefore reasonably did not continue with the modified work and followed their physician’s instructions. The worker returned to work with restrictions in April 2021 when the employer provided an offer of modified duties that aligned with the worker’s restrictions. The worker should therefore be entitled to wage loss benefits beyond January 5, 2021 as the employer did not have available or offer appropriate modified work from January 5, 2021 until April 18, 2021.

The worker advisor noted that the worker was willing to participate in a modified duties program if the employer had work available within the worker’s restrictions. In this case, the facts are complicated by the employer’s advice that the worker apply for short term disability benefits and the delayed filing of the claim with WCB. The worker advisor pointed out that the employer did not engage with the worker in exploration of other duties within the worker’s restrictions until the WCB became involved in the process in April 2021. In the interim, the worker demonstrated their participation in the process by providing a modified duties form to the employer on March 11, 2021. Given the employer did not make any offers of modified duties to the worker during this period, it was reasonable for the worker to assume there was no appropriate work available.

The worker, on questioning by the worker advisor, confirmed that they were aware of the modified duties program of the employer, having participated in it in September 2020 as a result of another injury. At that time, as in March 2021, the worker’s spouse submitted the worker’s forms to the employer, as both the worker and their spouse are employed by the employer.

The worker indicated that after their symptoms worsened in their right thumb and wrist on December 30, 2020, they spoke with their supervisor about their difficulties and sought medical treatment the next day. On January 4, 2021 the worker attended work with a modified duties form completed by their treating physician and provided the form to their supervisors who offered the worker the option of doing their regular job but with only their left hand and no other modifications. The worker indicated that they tried to do so but found this caused symptoms in their left elbow and shoulder, and that they also found themself using their right arm out of habit from time to time. During the course of the day on January 4, 2021 the worker spoke with their supervisor a couple of times about the difficulties they were experiencing with the left-hand only approach and ultimately indicated that they did not believe they could continue. The supervisor suggested the worker apply for short term disability benefits and provided the application package to the worker. The supervisor also stated there were no modified duties available beyond those the worker attempted that day.

The worker testified that they provided the employer with monthly doctor’s notes indicating their continuing disability in February and in March and did not hear from the employer during this time. The worker confirmed that their partner delivered the February 2021 doctor’s note to the employer on February 25, 2021, providing it to the worker’s supervisor, and that their partner provided the completed modified duties form to their manager to provide to the worker’s manager, on March 11, 2021. Another doctor’s note was delivered by the worker’s partner to the worker’s supervisor on March 26, 2021.

On questioning by members of the appeal panel, the worker indicated that their treating physiotherapist indicated on January 18, 2021 that the worker’s injury was caused by work and that a WCB claim should be made. The worker also recalled attending a meeting with their supervisor at work on January 24, 2021. This meeting was arranged by the supervisor for the purpose of completing the WCB incident report, and although the worker was not able to recall precisely when the supervisor requested that meeting, they believed it was a day or two earlier.

In sum, the worker’s position is that the worker is entitled to benefits beyond January 5, 2021 as they were medically removed from all employment duties, the WCB did not direct the worker to return to modified duties and the employer did not offer appropriate modified duties until April 18, 2021. As such, the worker continued to sustain a loss of earning capacity due to the compensable workplace injury and is entitled to wage loss benefits as a result.

Employer’s Position

The employer was represented in the hearing by a representative who made an oral submission on behalf of the employer.

The employer’s representative outlined the employer’s position that the Review Office correctly determined the worker is not entitled to wage loss benefits beyond January 5, 2021 as the worker failed to participate in the modified, left-handed duties offered by the employer and further did not advise the employer that their injury was work-related with the result that the disability insurance provider was responsible to manage the worker’s return to work and need for accommodation.

The employer’s representative noted that although the worker claims to have experienced right wrist difficulties since October 2020 resulting in functional limitations as outlined in the treating physician’s note of December 31, 2020, at no point prior to late January 2021 did the worker indicate that their difficulties were related to their job duties. The representative stated that the employer does not direct the nature of a worker’s claim, so that the employer will first propose to a worker that they apply for short-term disability benefits unless the employer is advised or aware that a worker’s injury is work-related.

In this case, the employer’s representative noted that the employer offered the worker accommodated duties on January 4, 2021 based on the restrictions set out in the December 31, 2020 physician’s note. The worker’s job requires completion of repetitive tasks, so the restriction against undertaking repetitive tasks with their right hand was interpreted to mean that the worker could still undertake repetitive left-handed tasks. It was only when the worker identified difficulty with the left-handed only duties that the employer proposed that the worker apply for short-term disability benefits. The representative indicated that once that process is engaged by an application of a worker for insurance benefits, the employer is no longer involved and takes further direction from the insurance provider. During this time, the employer was not in a position to make any offers of accommodation as there was no direction from the insurer to do so.

The employer’s representative stated that the WCB request for an employer incident report was not made until February 2021. The representative indicated the employer completed that report within 72 hours of receipt and the WCB received the report on February 8, 2021. At that same time, the short-term disability claim was “closed”.

The employer’s representative noted that when the WCB claim was made, the most recent information available to the employer was that the worker was only able to undertake some left-handed duties and the only duties the employer had available were those that the worker indicated on January 4, 2021 were not workable for them. When the WCB accepted the worker’s claim, the employer participated in return-to-work discussions with the WCB case manager and offered appropriate accommodation.

The employer’s representative stated that the employer believes the worker failed to mitigate the effects of their injury, initially by not making a claim to the WCB and not advising the employer that their injury was work-related, and then by not advising the employer when they were medically able to return to modified duties.

On questioning by members of the appeal panel, the representative stated their belief that the employer was not aware of the worker’s claim to the WCB until February 2, 2021. The employer’s representative acknowledged that once the employer is aware of a WCB claim, they will typically seek out information as to the worker’s functional abilities. In this case, the employer acknowledged they received a completed functional abilities form on March 11, 2021 but the representative could not confirm when it was sent to the worker. The representative also acknowledged that there was some delay in providing the worker with an offer of modified duties.

In sum, the employer’s position is that the evidence confirms the worker was capable of modified duties from January 5, 2021 onward and as such, the worker had an obligation to stay in contact with the employer as to the availability of appropriate modified work. As the worker failed to mitigate the effects of their injury, they should not be entitled to wage loss benefits beyond January 5, 2021 and the appeal should be denied.

Analysis

The question on appeal is whether the worker is entitled to full wage loss benefits effective January 5, 2021 in relation to their right upper extremity injury. For the worker’s appeal to succeed, the panel would have to determine that the worker sustained a loss of earning capacity effective January 5, 2021 as a result of their workplace accident. As outlined in the reasons that follow, the panel was able to determine that the worker was entitled to full wage loss benefits effective January 24, 2021 and therefore the worker’s appeal is allowed in part.

The panel noted that although the worker stated that the right upper limb injury was first sustained in October 2020 and that their symptoms worsened in December 2020 to the point where their treating sports medicine physician recommended workplace restrictions and use of a brace, they did not connect their symptoms to their workplace duties until January 18, 2021 when the assessing physiotherapist suggested a causal connection between the worker’s job duties and their injury. It was only at that point that a WCB claim was initiated.

The panel also noted the evidence that on the basis of the restrictions outlined by the treating sports medicine physician on December 31, 2020, the employer appropriately offered the worker accommodated duties at their first subsequent shift on January 4, 2021. The worker’s testimony is that the accommodated duties were their regular duties but to be done with only their left hand, and that the worker struggled both with doing their regular job without using their right hand and with discomfort as a result of using their left hand more than they were accustomed to. In the result, the worker initiated conversations with their supervisor indicating that the accommodation was not working for them and the supervisor suggested that there were no other modified duties available for the worker to undertake. The supervisor therefore proposed that the worker consider applying for short-term disability benefits and the worker agreed to do so. The worker’s testimony in this regard is consistent with the evidence of the employer. The panel is satisfied that the employer provided the worker with short-term disability forms based on what the employer knew at the time, namely that the worker had sustained an injury and required modified duties as outlined in the restrictions provided by the worker’s treating physician. Initially, there was no information provided to the employer to suggest that the worker was injured as a result of undertaking their employment duties and therefore the panel agrees that the employer could not have been expected to engage any other process at that time. As explained by the employer’s representative, when a short-term disability claim is initiated, the employer was not further involved in the management of such a claim.

The WCB claim file in relation to the worker’s upper right limb injury was opened after the worker attended for physiotherapy on January 18, 2021 and the physiotherapist reported to the WCB an injury arising from the worker’s repetitive job duties on January 19, 2021. The file record indicates that the WCB set up a claim file on January 22, 2021 and subsequently contacted the employer, although the specific date is not apparent from a review of the claim file. The Worker Incident Report is signed by the worker on January 24, 2021 and the worker’s testimony indicates that their supervisor called them into a meeting on January 24, 2021 to discuss the circumstances of their injury for the purpose of providing a report to the WCB and the Employer’s Accident Report indicates investigation notes dated January 25, 2021. The panel is therefore satisfied that as of no later than January 24, 2021, the employer was aware of the worker’s WCB claim in respect of this injury.

The panel finds that when the employer was aware of the worker’s claim for benefits relating to a workplace injury, there was a duty on the employer to consider whether any accommodation could be offered and to make such an offer. The file evidence confirms that the employer did not make a further offer to the worker of modified duties after January 4, 2021 until April 16, 2021 when the WCB case manager confirmed that the employer could accommodate the worker’s restrictions with a planned return to work date of April 19, 2021.

The employer took the position in the appeal hearing that the worker should not be entitled to full wage loss benefits as of January 5, 2021 as the worker failed to meet their mitigation responsibilities under s 22 of the Act. The panel does not find that the evidence supports that position, noting that the worker was told on January 4, 2021 that the employer did not have other duties available and was not provided with any information to the contrary until April 16, 2021 despite having provided the employer with numerous medical and functional ability updates in the interim. The evidence confirms that the worker reasonably followed the instructions of their treating medical professionals, that they appropriately provided information to the employer as to their status and abilities, attended at work when called by the employer to provide information in respect of the injury investigation and fully participated in the WCB-initiated return-to-work program as requested. We are therefore satisfied that the evidence does not support a finding that the worker failed to mitigate their loss of earning capacity.

On the basis of the evidence before us, the panel is satisfied that the employer was not aware that the worker’s injury was causally related to their work duties until the WCB claim was initiated in late January 2021. While it is unclear precisely when the employer was first made aware of this claim, the panel is satisfied that that the employer had undertaken an inquiry into the claim on January 24, 2021 when it engaged the worker in a discussion about the circumstances surrounding the claim. Until that time, the employer reasonably acted upon what was known, which is that as a result of an injury the worker was not able to work at their regular job duties without accommodation and was in receipt of short-term disability benefits. But, once the employer was made aware of the accident claim, the obligation was on the employer to consider whether it could accommodate the worker’s medical restrictions and to communicate any offer of modified duties to the worker. The panel is satisfied on the basis of the evidence before us that the employer did not do so until April 16, 2021 and as such the worker sustained a loss of earning capacity from January 24, 2021 until their return to modified duties on April 19, 2021.

On the basis of the evidence before us and on the standard of a balance of probabilities, the worker is entitled to full wage loss benefits as of January 24, 2021. The worker’s appeal is granted in part.

Panel Members

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 27th day of June, 2022