The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that:

1. The permanent partial impairment rating has been correctly calculated; 

2. Their restrictions have been correctly established; 

3. They are not entitled to vocational rehabilitation benefits and services; and 

4. They are not entitled to wage loss benefits after September 6, 2018.

A videoconference hearing was held on January 11, 2023 and reconvened on April 13, 2023 and September 11, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker’s permanent partial impairment rating has been correctly calculated; 

2. Whether or not the worker’s restrictions have been correctly established; 

3. Whether or not the worker is entitled to vocational rehabilitation benefits and services; and 

4. Whether or not the worker is entitled to wage loss benefits after September 6, 2018.

Decision

1. The worker’s permanent partial impairment rating has been correctly calculated; 

2. The worker’s restrictions have been correctly established; 

3. The worker is not entitled to vocational rehabilitation benefits and services; and 

4. The worker is not entitled to wage loss benefits after September 6, 2018.

Background

On July 19, 2018, the WCB received a Worker Incident Report indicating the worker injured their neck, back and right wrist in an incident at work on July 17, 2018. The worker described carrying a large container when they slipped on "…a puddle of oil on the floor…" as they were walking down a ramp. They noted their feet slid to the left, with their top half of their body going to the left and grabbing "…the side of the trough with my right hand to catch myself from falling in the oil. I was able to catch myself before I fell completely." The worker noted:

I felt a soreness on the left side of my body and in my right wrist but I kept working throughout the day. As the day progressed the pain got worse. The following morning I could not put any weight on my left foot. Everything seized up and started swelling.

I feel pain from my neck to my hip on my left side and I can't put weight on my left leg. I feel a numbing sensation in my fingers on my right hand. I feel a constant pain in my back.

No pops or cracks. No bleeding. Bruising on the inside/bottom of my wrist, swollen and bruising. Back is swollen.

The worker sought treatment with their chiropractor on July 18, 2018. The worker described pain in their neck area with headaches, low back and pelvic pain causing a limp, right wrist pain and swelling and some difficulty in their mid-back area when bending. The treating chiropractor found multiple spinal subluxations, along with right wrist subluxations causing acute and passive pain after examining the worker and diagnosed cervical, lumbopelvic and right wrist strain/sprains. It was recommended the worker remain off work until July 20, 2018.

In a discussion with the WCB on July 25, 2018, the worker confirmed the mechanism of injury and further confirmed they finished their shift on July 17, 2018. They noted their symptoms worsened the following morning, they attended for medical treatment and advised the employer of the workplace accident. At a follow-up appointment with the chiropractor on July 27, 2018, due to ongoing symptoms, it was recommended the worker remain off work. The worker's claim was accepted by the WCB on July 31, 2018 and the payment of wage loss and medical aid benefits commenced. By August 15, 2018, the worker's treating chiropractor reported the worker's neck and back issues were much improved with their right wrist continuing to be "…swollen, unstable, painful and limited in mobility." After examining the worker, the chiropractor found the worker's spinal issues were approximately 60% resolved, with their right wrist showing very slow improvement and recommended the worker continue to wear a right wrist brace for stabilization. The chiropractor recommended the worker could return to work with no use of their right wrist as it needed to be braced. The restrictions were provided to the employer on the same date. The employer advised on August 15, 2018, they could accommodate the worker within those restrictions and the worker returned to work on August 16, 2018.

A further follow-up report from the worker's treating chiropractor was received by the WCB on August 29, 2018. The chiropractor noted the worker's reporting of returning to work on light duties, which were aggravating their symptoms and that their employer was making them perform "…some unsuitable duties." The chiropractor noted ongoing slow reduction of the worker's right wrist subluxations and soft tissue swelling, with the spinal issues improving. The treating chiropractor noted the worker had returned to work on modified duties on August 16, 2018 but had given their notice and was quitting. The WCB contacted the worker on August 30, 2018 to discuss the treating chiropractor's report. The worker confirmed they gave their notice at work as the employer was asking them to perform job duties that involved their right hand. The worker described the duties to the WCB, which included training other staff on equipment involving use of both their hands for approximately four hours intermittently. The worker noted they gave their notice and their last day would be September 6, 2018. The WCB advised the worker that they would not be entitled to wage loss after that date as it was their decision to end their employment. A follow-up report from the worker's treating chiropractor was received on September 30, 2018, noting the worker's spinal issues were resolved and were back to the worker's pre-accident status but the worker's right wrist difficulties continued.

On October 9, 2018, the WCB contacted the worker for a status update. The worker advised their neck, back and right wrist were worse than before, with their neck difficulties increasing approximately two weeks previously which they attributed to inability to sleep due to extreme pain in their right wrist. The worker noted they had attended for medical treatment at a walk-in clinic but when requested by the WCB, would not provide contact information for the treating physician. The WCB advised the worker they had ongoing entitlement to medical aid benefits and treatment for their right wrist difficulties as it had been determined their sprain/strain injury to their neck and back had resolved. However, it was confirmed the worker was not entitled to wage loss benefits after September 6, 2018. On October 11, 2018, the worker's file was reviewed by a WBC medical advisor who confirmed the worker's treating chiropractor opined the worker's spinal injuries were at pre-accident status and further chiropractic treatments were not recommended. The worker's ongoing right wrist difficulties were noted and the WCB medical advisor recommended the worker should seek further treatment with a sports medicine physician.

The worker was seen by a sports medicine physician on November 21, 2018. The treating sports medicine physician recorded the worker's reporting of carrying a heavy item, slipping with their right wrist striking a metal table but unsure of how their wrist twisted. They described developing significant pain shortly after with swelling. The worker described seeking chiropractic treatment then returning to work with left handed duties only but their employer asking them to use both hands, "…resulting in increasing pain symptoms and dysfunction" and not working since that time. The treating physician also noted the worker was using a brace during the day but not at night and was not being treated by any other healthcare provider. On examining the worker, the sports medicine physician noted:

The ulna seems to be dorsally subluxated bilaterally but slightly more on the right side. She has significant limitation on range of motion actively specifically with extension and supination. Passively able to get full range but with associated pain. Maximal tenderness dorsal to the ulna and slightly medial into the DRUJ (distal radioulnar joint). Positive piano key sign but slightly symmetric. Tenderness into the TFCC (triangular fibrocartilage complex). Tenderness into the scapholunate region with an equivocal ballottement test. Watson test was equivocal. Reagan's test was equivocal as well. Good strength. No subluxating tendons…"

The sports medicine physician queried a DRUJ/TFCC injury and recommended further investigation starting with an MRI. An MRI study on the worker's right wrist took place on December 4, 2018 and indicated a partial thickness tearing of the triangular fibrocartilage disc and dorsal radioulnar ligament; dorsal scapholunate ligament fissure with an adjacent 7 mm ganglion; and dorsal subluxation of the distal ulna. Further diagnostic imaging in the form a CT scan was recommended.

A decision letter was provided to the worker on December 5, 2018 confirming the worker was not entitled to wage loss benefits after September 6, 2018. The WCB advised the worker had specific concerns regarding their return to work accommodation but had not provided the WCB with a reasonable opportunity to resolve those concerns before terminating their employment. It was further noted the employer would have continued to be able to accommodate the worker had they not ended their employment. A December 12, 2018 follow-up report from the worker's treating sports medicine physician was received by the WCB. The report noted the worker's ongoing pain and dysfunction, provided a diagnosis of a TFFC tear with DRUJ instability and noted "traumatic findings---work related. Not fit to RTW and was not best and contraindicated that she RTW w/o (without) proper assessment and investigations. Need dedicated CT for DRUJ…"

On January 3, 2019, the worker underwent a CT scan of their right and left upper extremities. The CT scan indicated:

Redemonstration of right ulnar dorsal subluxation while in pronation. The finding is asymmetric as compared to the left side which appears normal in alignment. The findings suggest right distal radial ulnar joint instability…

A follow-up appointment with the worker's treating sports medicine physician took place on January 9, 2019. After a review of the CT scan and other diagnostic imaging, the physician referred the worker to an orthopedic surgeon who specialized in hand surgery. The treating physician noted the diagnostic imaging found "…evidence of right ulnar dorsal subluxation which is asymmetric to the unaffected side. This suggested a right DRUJ instability. In addition to the other findings, given these changes, they are consistent with a traumatic injury which would be consistent with her work-related injury." On March 5, 2019, the worker contacted the WCB to advise they were still awaiting an appointment with the orthopedic specialist. On March 6, 2019, the WCB provided the worker with a letter confirming their ongoing right wrist difficulties were accepted by the WCB, and their entitlement to wage loss and medical aid benefits would continue to be assessed by the WCB. It was noted when the worker ended their employment with the employer, there were appropriate modified duties available.

The worker requested reconsideration of the WCB's decision to end entitlement to wage loss benefits as of September 6, 2018 on May 6, 2019. In their submission, the worker noted their treating healthcare providers supported they were not able to work due to their ongoing right wrist injury and as such, they should be entitled to further benefits.

On May 7, 2019, the WCB facilitated an expedited referral to another orthopedic specialist for the worker, who was seen by the specialist on May 14, 2019. The specialist diagnosed the worker with a right wrist distal radioulnar joint instability and referred the worker to a hand and wrist surgeon for consideration of a right wrist stabilization surgical procedure.

The employer provided a response to the worker's request for reconsideration on July 5, 2019. The employer noted they had modified duties available for the worker, as set out by the worker's treating healthcare providers and when the worker had returned to work, they performed the modified duties without issue. The employer noted they were aware of the worker's restrictions, as were other staff members, and believed there was a misunderstanding with the worker performing duties outside of their restrictions, which was corrected when the employer was informed. Review Office determined on July 25, 2019, the worker was not entitled to wage loss benefits after September 6, 2018. Review Office accepted the opinion of the WCB medical advisor that the worker's restrictions of sedentary/minimal use of their right hand were appropriate and by the worker voluntarily terminating her employment without advising any of the parties of difficulties performing some or all of the duties, the worker deprived themselves of a workplace accommodation and was not entitled to further wage loss benefits. Review Office noted their decision was a point in time decision.

The worker was seen by the hand and wrist orthopedic surgeon on August 21, 2019. The surgeon examined the worker and the diagnostic imaging and opined the worker had chronic dorsal subluxation of the ulna and recommended distal radioulnar joint ligament reconstruction surgery. The worker's file was reviewed by a WCB medical advisor on August 30, 2019 and on the same date, the surgeon was provided with a surgery authorization letter by the WCB. The worker underwent an arthrotomy of the right distal radioulnar joint and right distal radioulnar joint ligament reconstruction on September 3, 2019. The treating surgeon recommended a return to work in a minimum of three months after the surgery, with a six week period of total disability from work. The WCB spoke with the worker on September 10, 2019 for an update after the surgery. The worker advised their right wrist was casted and they were to return to the clinic for x-rays, stitches and re-casting on September 20, 2019 and then a follow-up appointment with the surgeon on October 21, 2019. The worker further advised the surgeon recommended no lifting, pushing or pulling with their right arm and they would be cleared for physiotherapy by the surgeon. The worker was placed back on full wage loss benefits as of September 3, 2019.

On September 27, 2019, the worker attended for an initial physiotherapy assessment. The physiotherapist noted the worker was post-operative from a right DRUJ reconstruction, and had constant pain in their wrist and forearm, intermittent burning and tingling aggravated by finger movements and recommended the worker remain off work. At the follow-up appointment with the surgeon on October 21, 2019, the surgeon noted the worker was doing quite well, with well-healed incisions and normal neurovascular status. Finger and thumb function was noted to be normal and stiffness had resolved. Supination to approximately 50 degrees, passively much more was also noted, with stiffness with pronation. The treating surgeon recommended physiotherapy to work on range of motion to work towards the worker discontinuing use of the wrist brace and strengthening. It was recommended the worker not return to work as they had a 50 pound lifting requirement at work.

The WCB provided a further decision letter to the worker on October 22, 2019 advising their entitlement to wage loss benefits ended as of October 14, 2019 as a short period of total disability was considered while recovering from the September 3, 2019 surgery and as six weeks had now past, it had been determined they would be capable of performing left-handed duties. On December 9, 2019, the WCB spoke with the employer who confirmed modified duties would still be available for the worker had they not terminated their employment. The WCB noted the worker had previously advised their treating healthcare providers of a 50 pounds lifting requirement as part of their job duties, with the employer advising the worker would not have been required to lift 50 pounds and some of their job duties may have required lifting boxes of no more than 20 pounds in weight. On January 27, 2020, the employer provided the WCB with photographs of the various one-handed job duties they would have had available for the worker. On February 4, 2020, the worker's file was reviewed by a WCB medical advisor who opined the worker's diagnosis was a right DRUJ instability, which medically related to the July 17, 2018 workplace accident. The advisor noted the worker's treating orthopedic surgeon opined the worker could return to work three months post-surgery however, it was noted that likely related to job duties involving the worker's right arm and it would be reasonable the worker could return to one-handed duties two weeks post-surgery. Further, the WCB medical advisor provided the one-handed duties proposed by the employer and supported by the photographs "…do not appear to pose significant risks to the right arm."

The worker had a virtual visit with their treating orthopedic surgeon on March 18, 2020, noting the worker was approximately six months post-surgery and reported a bit more motion in their wrist from the last appointment, "…which was also almost essentially full pronation and supination to 42 degrees…Wrist flexion and extension is about the same as it was before it sounds like about a 100-degree arc." Due to the COVID-19 pandemic, the worker was unable to attend for physiotherapy treatment but began a course of occupational therapy on June 5, 2020. At an August 17, 2020 follow-up with the orthopedic surgeon, it was noted the worker continued "…to demonstrate a slightly prominent ulna, but it is prominent bilaterally" and complained of mild discomfort around the dorsal ulnar and ulnar aspect of their right wrist. Increased passive range of motion was indicated but noted not to be close to full. The surgeon provided their belief the worker would not be able to return to "…heavy repetitive type labor" and had no further surgical management to offer for the worker.

On September 22, 2020, the worker's representative requested the WCB determine if the worker was entitled to a permanent partial impairment rating and award. On October 21, 2020, a WCB medical advisor requested the worker undergo a functional capacity evaluation in order to determine if they were at maximum medical improvement. The worker attended for a functional capacity evaluation (FCE) on October 29, 2020. The physiatrist who conducted the FCE noted the worker passed validity tests and presented with a consistent effort. Limited range of motion was noted at the worker's right wrist with pronation to 40 degrees, supination to 40 degrees, wrist flexion to 45 degrees and wrist extension to 40 degrees. Dexterity was noted to be very good, with consistent use of the right hand for manual work. On December 22, 2020, the worker's file was reviewed by a WCB medical advisor and permanent restrictions of constant right hand handling and fingering; right hand carrying up to 10 pounds on a frequent basis; bilateral lifting up to the shoulders ranging from 29 to 49 pounds on an occasional basis and lifting above the shoulder to 9 pounds on an occasional basis with right grip strength up to 48 pounds. The worker's file was reviewed by a WCB physiotherapy advisor to determined eligibility for a permanent partial impairment rating and award as it was determined the worker was likely at maximum medical improvement. On February 8, 2021, the employer confirmed they would have been able to accommodate the worker within the permanent restrictions placed by the WCB.

The worker’s representative contacted the WCB on February 16, 2021, confirming the worker had undergone the testing for an impairment review and noting the worker’s request they be referred for “…vocational services for job retraining to enable her to assume an employment position that she can handle with her disability.” On February 24, 2021, the WCB provided a letter to the worker’s representative confirming the worker had not yet been examined for a permanent partial impairment rating and award, confirmed the worker’s permanent restrictions and advised the representative the worker was not entitled to vocational rehabilitation benefits and services as the worker voluntarily ended their employment relationship with the employer, who had and continued to have accommodation available for the worker.

On March 18, 2021, the worker attended for a permanent partial impairment examination with a WCB physiotherapy consultant. Upon examining the worker and comparing the digital pictures of the scarring on the worker’s right wrist, the consultant determined the worker’s cosmetic impairment rating to be 1%. Active guided left and right wrist and forearm mobility was measured and the WCB physiotherapy consultant opined the worker’s impairment with respect to their wrist was determined to be 2.8%, and forearm to be 1.4%, for a total permanent partial impairment rating calculated to be 5.2%. On March 26, 2021, the worker was advised of their permanent partial impairment rating and provided with an award.

The worker’s representative requested reconsideration of the WCB’s decisions related to the worker’s permanent restrictions, entitlement to vocational rehabilitation services and permanent partial impairment rating and award to Review Office on December 22, 2021. The representative submitted a report from the worker’s treating family physician dated August 17, 2020 and the worker’s treating chiropractor dated August 24, 2020, both in support of the worker’s ongoing disability with their right wrist. The worker’s representative noted the reports supported the worker’s permanent disability related to their right wrist; that the worker’s permanent restrictions were not strict enough given their disability and the worker could not return to their pre-accident employment and as such, required vocational rehabilitation services. On January 13, 2022, the employer contacted the WCB to confirm modified duties continued to be available for the worker, had they not ended their employment and on March 28, 2022, provided a submission in support of the WCB’s decisions, a copy of which was provided to the worker. The worker’s representative provided a response on April 21, 2022.

Review Office determined on May 2, 2022, the permanent partial impairment rating of 5.2% was correct, the worker’s permanent restrictions were correct and the worker was not entitled to vocational rehabilitation benefits and services. With respect to the worker’s permanent partial impairment rating, Review Office found the WCB physiotherapy consultant examined the worker and calculated the ratings correctly. Review Office noted the worker’s representative’s reference to the worker’s disability, or inability to perform work duties, differs from the requirement under the WCB’s legislation and policies for a permanent partial impairment, which refers to loss of function. Further, Review Office found the worker’s permanent restrictions, placed in February 2021, were correct based on the worker’s FCE and the opinions of the WCB medical advisors. Lastly, regarding the worker’s representative’s request for the worker to be referred for vocational rehabilitation benefits and services, Review Office concluded the worker had removed themselves from a possible workplace accommodation when they terminated their employment with the employer. Review Office noted the file evidence supported the employer remained capable of accommodating the worker within their permanent restrictions.

The worker’s representative filed an appeal with the Appeal Commission on May 12, 2022, with an additional issue added to the appeal on June 6, 2022 and a 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. The applicable legislation is the Act as it existed at the date of injury.

A worker is entitled to benefits under subsection 4(1) of the Act where it is established that the worker was injured as a result of an accident at work. Section 27(1) of the Act 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."

Subsection 22(1) of the Act requires a worker to take reasonable steps to reduce or eliminate impairment and to cooperate with the board in developing a return to work program. Subsection 22(1) states:

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.

The Act further provides at Subsection 22(2) as follows:

If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.

The WCB has also established policies to guide it in its interpretation and application of the Act. Three of the policies established by the WCB are of particular relevance to this appeal. The first, is Policy 43.20.25, Return to Work with Accident Employer (the “Return to Work Policy”) which sets out the expectations on the worker and the accident employer regarding a return to work for the worker and the obligation to find suitable or modified alternate work. The Return to Work Policy states:

When a worker is injured or becomes ill at work, the goal of the Workers Compensation Board (WCB) is to reduce the impact of the injury by assisting the worker in returning to work, preferably with his or her accident employer. Most of the time the worker, employer and collective bargaining agent (where applicable) will make their own arrangements. The WCB encourages these permanent or transitional arrangements and will work with all parties to help the worker safely return to work.

…

Suitable Modified or Alternate Work

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.

…

Non-Cooperation

If the employer initiates modified or alternate work that does not meet the standards for suitable work as described in this policy, the WCB may offer additional rehabilitation services to the worker.

If a worker refuses to participate in suitable work, wage-loss benefits will be reduced or eliminated by the amount the worker would have earned in the suitable work.

The second policy is Policy 44.10.30.60, Cooperation and Mitigation in Recovery (the “Cooperation and Mitigation Policy”) which sets out the expectations on the worker in cooperating with the board and the employer in order to mitigate losses. The Cooperation and Mitigation Policy makes reference to Section 22 of the Act and states:

If a worker fails to comply with section 22, the WCB may reduce or suspend the worker’s compensation. Section 22 imposes an obligation on workers to participate cooperatively in their recovery and safe return to work. This policy elaborates on the responsibilities of both workers and the WCB in ensuring compliance with section 22 of the Act.

…

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.

In other words, a worker will have an obligation to take steps to mitigate their losses, including returning to work and participating in medical and other treatment.

The third policy is Policy 44.90.10 Permanent Impairment Rating (the “Permanent Impairment Policy”) which deals with permanent impairments. That Policy provides that the degree of impairment will be determined by the WCB’s Healthcare Services Department in accordance with the Policy and that:

In order to maintain consistency in ratings for disfigurement, and to make the ratings as objective as possible, medical staff will make reference to the folio of previous disfigurement ratings established as a policy by WCB Order No. 67/89 and maintained by the WCB’s Healthcare Services Department as prescribed in WCB Order 67/89.

Worker’s Position

The worker was represented by counsel at the hearing. It was the worker’s position that her permanent partial impairment (“PPI”) has not been correctly calculated, that her restrictions were not correctly established, that she ought to be entitled to vocational rehabilitation, and that she ought to be entitled to wage loss benefits after September 6, 2018. It was also the worker’s position that she has a claim for psychological injuries as a result of the workplace accident and subsequent events for which she is entitled to compensation.

The worker described the mechanism of injury which occurred after she slipped on an oily substance at work. She indicated that although she was able to catch herself from falling, she sustained multiple injuries to her neck, back and right wrist. Although her neck and back injuries resolved themselves over the weeks following the workplace accident, the wrist injury persisted.

The wrist injury was initially diagnosed as a sprain/strain injury and she was advised that she was able to return to work approximately one month after the workplace accident. The worker says she attempted to return to work on modified duties that involved no use of her right wrist. 

The worker further says that although the employer provided her with suitable modified duties during the first couple of days following her return to work, by the third day, the employer assigned her duties which she described to the panel and which she felt were beyond her restrictions. The worker says that in the process of attempting to complete the increased duties, she slipped again on the wet floor and banged her injured hand and wrist, causing further injury. She decided at the point to give notice to her employer.

The worker said that after giving notice that she was resigning her employment, the employer approached her and asked what they could do to have her stay. She asked to remain on light or modified duties applying labels to packages of perogies, but the employer refused.

After going off work again, the worker’s right wrist injury was re-assessed and it was determined that she had a distal radial ulnar joint (“DRUJ”) injury which ultimately required surgery. Despite the surgery, the worker said she continues to suffer from pain and ongoing impairment as well as psychological injury from the stress and trauma of her experience with dealing with the employer, among other things. With respect to her wrist injury, she noted that she is no longer able to do many of her previous activities, including ‘quadding’ and snowmobiling, or anything that requires her to rotate her wrist or involves finger dexterity in her right hand. She added that she cannot lay her hand completely flat and cannot fully rotate her wrist or twist her elbow. She said she has attempted to find alternate work, but to date has been unsuccessful as a result of her restrictions. In her view, the WCB should be providing her retraining.

Although the worker was assessed for PPI, she says the assessment was not completed correctly and, further, her disability has grown worse since she was assessed. In her view, therefore, the PPI needs to be re-assessed.

Employer’s Position

The employer was represented by the office manager for the employer. It was the employer’s position that all previous decisions by WCB were correct and should be upheld.

The employer insists that it attempted to accommodate the worker upon her return to work. The employer denies any suggestion that it effectively forced the worker to quit and insists that modified duties were not only available at the time that the worker initially returned but would have continued to be available indefinitely. Even after receiving notice of the worker’s resignation from the worker, the employer followed up with the worker to see if further steps could be taken to accommodate her within her restrictions. The worker, however, chose not to return.

Analysis

There is no dispute that the worker suffered a wright wrist injury and that the claim for the right wrist injury was accepted. For the worker’s appeal to be successful, however, the panel must find, on a balance of probabilities, that the worker’s PPI rating was incorrectly calculated, that her restrictions were incorrectly established, that the worker is entitled to vocational rehabilitation benefits and services, and that the worker is entitled to wage loss benefits after September 6, 2018. For the reasons that follow, the panel is unable to make any of those findings.

PPI Rating

With respect to the PPI rating, the panel notes that the rating was based on an examination completed on March 18, 2021 by a member of the WCB’s Healthcare Services Department. The review included both an assessment for cosmetic disfigurement and loss of mobility. The panel reviewed with the worker her concerns about the assessment. The worker carefully and succinctly described the movements she was required to demonstrate, involving an assessment of both passive and active range of motion. The panel notes that the movements the worker described as being completed during the assessment are exactly the movements that were to be assessed by the assessor. The worker did not present evidence that the testing done by the assessor was improper, incomplete, inaccurate, or incorrect. The panel therefore finds that the evidence supports that the PPI assessment was correctly performed and calculated in accordance with the policy.

During the hearing, the worker’s advocate raised an additional matter regarding the PPI assessment which was that the worker’s PPI assessment may be subject to further review after two years. As this issue has not been adjudicated by WCB, it is outside of the panel’s jurisdiction and therefore cannot be addressed.

Worker’s Restrictions

The evidence before the panel was that the worker was not completely disabled as a result of the workplace accident and was able to perform one-handed duties with her non-dominant hand. The worker was provided restrictions on her initial return to work. The worker’s restrictions were re-assessed on further occasions, including an assessment which followed her FCE. Restrictions related to her right hand were continued. She was also given restrictions for carrying more than 10 lbs. with her right hand, and she was restricted from bilateral lifting. The restrictions were considered permanent.

We have reviewed the restrictions placed on the worker on her return to work and throughout the claim file. The restrictions were also reviewed by WCB medical consultants who confirmed the diagnosis and confirmed that the restrictions were appropriate. The WCB medical consultants also confirmed that the worker would have been capable of working within the restrictions, which specifically allowed for sedentary/minimal use of her right hand.

The suitability of the restrictions was also canvassed at length with the worker during the hearing. As we understand the worker’s position, she is not disputing that the restrictions were appropriate, but says that the employer failed to provide her with duties that fell within her restrictions.

In order for the panel to determine that the restrictions were inappropriate, the panel would require some medical evidence or an opinion contrary to the evidence on the worker’s file to suggest that the restrictions were incorrectly assessed. No such medical opinion or evidence was filed or produced by the worker to suggest that the restrictions were inappropriate. In the panel’s view, the restrictions at each and every time that they were established during the course of the claim were appropriate. The panel therefore finds that the restrictions were correctly established.

Vocational Rehabilitation Benefits and Services

With respect to vocational rehabilitation benefits and services, the panel notes that vocational rehabilitation benefits and services are not an entitlement of an injured worker but a tool used by WCB at its discretion to mitigate a worker’s income loss. Before WCB will exercise its discretion to offer vocational rehabilitation benefits and services, WCB must first determine that there has been a loss of income which warrants mitigation.

In this case, the worker made a decision to remove herself from her employment with the employer. The employer indicated both to the WCB and at the hearing that it was prepared to accommodate the worker and the accommodation could be made permanent. Had the worker continued in an accommodated position with the accident employer, she would have continued to receive income and there would have been no loss.

The panel finds that because the worker voluntarily removed herself from her employment situation, she became ineligible for consideration of vocational rehabilitation services in this particular situation. In the circumstances, we find that the worker does not have an entitlement to vocational rehabilitation benefits and services.

Wage Loss Entitlement

We similarly conclude that the worker is not entitled to wage loss benefits after September 6, 2018. The panel notes that pursuant to Subsection 22 of the Act and the Return to Work Policy, there is an obligation to cooperate with efforts to return the worker to the accident employer's employment. In this case, the worker made a decision to remove herself from her pre-accident employment. The decision to voluntarily remove herself from her employment is the reason for her loss of income. The panel does not accept the worker's decision for resigning their employment was appropriate and would justify a continuing entitlement to wage loss benefits. Concerns that the worker may have had with the modified duties should have been brought forward to the WCB to be addressed. The panel also notes that the worker was advised by their case manager of the impact that resigning their employment would have on their benefit entitlement, yet the worker proceeded to end the employment relationship.

Psychological injuries

With respect to the final issue raised by the worker during the course of the hearing, namely her claim for psychological injuries as a result of her workplace accident, this is not an issue that has been adjudicated by the WCB and, as such, it is not within the panel’s jurisdiction to consider.

Conclusion

Given all of the above, the panel therefore concludes that the worker has failed to establish, on a balance of probabilities, that her PPI rating was incorrectly calculated, that her restrictions were incorrectly established, that she is entitled to vocational rehabilitation benefits and services, or that she is entitled to wage loss benefits after September 6, 2018. The worker’s appeal is therefore dismissed.

Panel Members

K. Wittman, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 10th day of November, 2023