The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

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

1. They are not entitled to wage loss benefits after July 25, 2012; and 

2. They are not entitled to further benefits after September 17, 2012.

A videoconference hearing was held on October 24, 2023 to consider the worker's appeal.

Issue

1. Whether or not the worker is entitled to wage loss benefits after July 25, 2012; and 

2. Whether or not the worker is entitled to further benefits after September 17, 2012.

Decision

1. The worker is entitled to wage loss benefits after July 25, 2012; and 

2. The worker is entitled to further benefits after September 17, 2012.

Background

The worker filed a Worker Incident Report with the WCB on January 7, 2011 reporting an injury to their right shoulder, elbow and wrist sustained in an incident at work on January 5, 2011. The worker described attempting to grab an item stacked on top of other items, when the item slipped, and while trying to catch it, they injured their shoulder, elbow, and wrist. The worker sought medical treatment that day at a local urgent care department, reporting pain, burning and weakness in the right arm after an item fell off a shelf, pulling their arm. The treating physician noted pain and tenderness in the worker’s right arm, especially from their elbow to their hand and tenderness in their ulnar nerve on palpitation. The worker reported a previous “tennis elbow” injury and the physician diagnosed acute-on-chronic lateral epicondylitis, recommending physiotherapy and use of a sling for their arm, with ability to perform modified duties with their left arm.

On assessing the worker on January 6, 2011, the family physician noted tenderness over the right lateral elbow and forearm flexor area, with swollen muscles at the elbow level, and diagnosed right shoulder, arm, elbow, and wrist injury, noting the worker previously had epicondylitis/tendonitis. The physician recommended treatment with anti-inflammatory medication and physiotherapy, with 3 weeks off work.

The employer provided an Employer’s Accident Report to the WCB on January 7, 2011, confirming the mechanism of injury reported by the worker. The employer noted the worker reported attempting to catch the item, hurting their arm and shoulder, with complaint of numbness in their forearm and hand at the end of the shift.

On January 7, 2011, the worker attended an initial physiotherapy assessment, reporting pain and burning in their right shoulder, elbow and forearm that travelled into their hand with weakness and decreased range of motion and numbness. The physiotherapist noted decreased range of motion in the worker’s shoulder and elbow and decreased strength in shoulder flexion and abduction, elbow flexion and wrist extension and gripping, and diagnosed right shoulder rotator cuff strain and lateral epicondylitis.

When the WCB contacted the worker on January 12, 2011, the worker confirmed the mechanism of injury and advised they had right lateral epicondylitis since 2008 but the symptoms had improved and settled. The worker further advised they experienced symptomatic flare-ups in November and December, 2010 due to an increased workload, and that they sought medical treatment regularly for their symptoms and received a cortisone injection in November 2010. The worker further advised they self-treated with ice and use of an elbow support band. The WCB accepted the claim and provided wage loss and medical aid benefits.

The worker continued with physiotherapy and sought treatment with their family physician. On February 24, 2011, the worker returned to working, restricted to left-handed duties only for 2 hours daily. On March 1, 2011, the worker advised the WCB that they continued to experience throbbing and shooting pain in their arm but were continuing with the light duties at work. The worker further advised that an MRI study of their right shoulder and elbow was scheduled for March 13, 2011. The MRI study of March 13, 2011 indicated mild right lateral epicondylosis and normal findings in the worker’s right shoulder. At follow-up with the treating family physician on March 31, 2011, the worker reported pain and burning on lifting, and the physician requested referral to a specialist and recommended continuation of the restrictions.

A WCB medical advisor reviewed the worker’s file on March 29, 2011, and confirmed the initial diagnosis of right shoulder and elbow strain in relation to the compensable workplace accident. The medical advisor concluded the current diagnosis was right shoulder strain and possible lateral epicondylosis and referred the worker to a specialist. The medical advisor updated the worker’s restrictions to limit lifting to 10-15 pounds, and gradually increase their work hours. The WCB provided the updated restrictions to the worker and the employer on April 7, 2011.

The worker attended an appointment with the specialist on May 31, 2011, describing a swollen and painful forearm since the January 5, 2011 workplace accident. The specialist examined the worker and described:

“There appears to be a prominence of the right forearm extensor muscles with a distal gap in the midforearm that resembles the appearance of a musculotendinous disruption with proximal retraction. There is mild discomfort over the Peri-lateral epicondyle region. The range of motion of the elbow is normal. Distal strength of the forearm and finger extensors is normal.”

The specialist recommended an MRI study of the worker’s forearm and a structured exercise program. The MRI study of June 21, 2011 indicated normal findings.

In discussion with the WCB on June 8, 2011, the worker described performing some heavier work duties a few days prior to the specialist appointment, which they said aggravated their right arm/elbow and that since performing those duties, their arm had returned to how it felt immediately after the workplace accident. Further, the worker noted their arm had looked “a bit deformed” since the workplace accident, which had not gone away. The worker stated they struggled with some of the job duties, including lifting items and their hand to elbow area felt weak and tired, but they continued to wear their brace at work. 

A WCB medical advisor reviewed the worker’s file on July 8, 2011 and updated the restrictions to require avoidance of tasks requiring repetitive and/or sustained right-sided gripping, and lifting of up to 15 pounds, bilaterally. The WCB provided these restrictions to the employer on July 13, 2011.

On follow-up with the worker on July 28, 2011, the specialist reviewed the MRI scan findings and noted there was no evidence of a musculotendinous disruption. The specialist diagnosed probable forearm extensor muscle strain and recommended a reconditioning exercise program for the worker. At follow-up with the treating family physician on August 3, 2011, the worker reported unchanged pain and discomfort. The physician recommended restrictions of no repetitive movements and no lifting greater than 15 pounds.

On September 9, 2011, the worker advised the WCB they were experiencing worsening symptoms including numbness in four of their fingers on the right hand and all the fingers of the left hand, which they related to the weightlifting they were performing during physiotherapy treatment. The worker advised that a nerve conduction study (“NCS”) was scheduled for September 13, 2011.

The WCB received the NCS results on September 15, 2011, which indicated “Moderate impairment of left Median conduction across the wrist and mild impairment of right Median conduction. The electrodiagnostic criteria for Carpal Tunnel Syndrome were fulfilled bilaterally.” A WCB medical advisor reviewed the worker’s file, including the NCS findings, on October 4, 2011 and determined the current diagnosis was bilateral carpal tunnel syndrome, which was not medically related to the January 5, 2011 workplace accident. The WCB medical advisor concluded the worker did not require workplace restrictions related to the workplace accident and the aggravation of the worker’s pre-existing condition resolved.

On October 18, 2011, the WCB advised the worker that it could not establish that there was a relationship between their current difficulties, diagnosed as bilateral carpal tunnel syndrome, and the workplace accident and therefore the WCB would not accept any responsibility for those difficulties. The WCB also advised the worker it had determined based on the medical evidence on file that they recovered from the January 5, 2011 workplace accident and did not require further restrictions in relation to that accident.

An orthopedic surgeon with a specialty in hands assessed the worker on November 14, 2011, and noted tenderness over the lateral epicondyle and in the extensor muscles of the forearm as well as noting the worker had “…some discomfort in the lateral epicondyle with passive stretch of the extensor mass.” The surgeon recommended a pain relief injection, which took place at the same appointment, and advised the worker that surgical options could be discussed if there was no benefit from the injection. At follow-up on December 5, 2011, the surgeon noted the worker’s report that the injection only helped for two to three days, and that the worker had undergone a year of nonoperative management with no relief. The surgeon recommended open tennis elbow release surgery and advised the worker there would be an extensive rehabilitation process following the surgery.

On January 9, 2012, a WCB medical advisor reviewed the worker’s file and concluded that the medical information on file, including the latest information provided by the treating orthopedic surgeon, supported a relationship between the January 5, 2011 workplace accident and the current diagnosis of persistent lateral epicondylosis of the worker’s right elbow, and that the proposed surgery was appropriate. The WCB medical advisor recommended the resumption of the worker’s previous restrictions of avoiding tasks that require repetitive and/or sustained right sided gripping and lifting restrictions set at 15 pounds bilaterally. On the same date, the WCB advised the worker that it accepted that their current difficulties were related to the workplace accident, and approved the surgery, with entitlement to wage loss benefits as of January 11, 2012, the date of surgery.

The worker underwent an open right tennis elbow release with lateral epicondyle debridement on January 11, 2012. At post-surgery follow-up on January 23, 2012, the treating surgeon noted improved pain and a well-healed incision, with some swelling. A physiotherapist assessed the worker on January 30, 2012 and noted the worker’s elbow was stiff, sore, and painful, the worker was unable to make a fist and had decreased flexion and extension of the wrist. At further follow-up with the surgeon on March 12, 2012, the worker reported improvement in pain around their lateral epicondyle. The surgeon found tenderness over the muscular tendon region of the extensor apparatus, but no pain with active wrist extension or passive wrist flexion, and recommended continued aggressive hand therapy, and that the worker remain off work for another four weeks while continuing therapy.

On May 3, 2012, the employer advised the WCB that they received a Functional Abilities Form from the treating physician that indicated the worker could return to work at modified duties with restrictions for their right elbow, wrist and hand of no repetitive movement of involved joint against resistance no more than 34 – 66% throughout shift and no repetitive gripping or holding, in place for 4 to 8 weeks. The employer confirmed they could accommodate the restrictions. On May 16, 2012, the WCB advised the employer that the WCB did not have updated medical information that cleared the worker for a return to work.

On July 18, 2012, a WCB physiotherapy consultant reviewed the worker’s file and concluded the worker should be capable of performing single arm duties. On July 19, 2012, the WCB advised the worker that it determined they could work single arm duties, and the worker advised that the treating healthcare providers indicated they could not return to work at all. The worker also confirmed they had carpal tunnel syndrome in their left hand, which the WCB advised was not a work-related injury, and therefore would not be considered in arranging accommodation of the compensable injury. On the same date, after speaking with the employer, the WCB contacted the worker again to advise the employer had modified duties available for them.

On July 20, 2012, the employer advised the WCB that when they contacted the worker to confirm a return to work on July 26, 2012, the worker advised they would not be returning to work. On the same day, the WCB wrote to the worker, outlining that as they refused the employer’s offer of modified duties, they were not entitled to wage loss benefits after July 25, 2012.

On July 30, 2012, the WCB received a report in relation to the worker’s June 19, 2012 NCS, in which the treating neurologist noted the study indicated there was “…no evidence of ulnar neuropathy, cervical radiculopathy, radial neuropathy, or isolated posterior interosseous neuropathy on the right side” but mild carpal tunnel syndrome was noted on the worker’s right wrist. The worker attended a call-in examination with a WCB medical advisor on August 10, 2012. On examining the worker, the medical advisor noted the usual recovery time from a tennis elbow release surgery was 3 months, with improvements continuing for up to 12 months, but noted the worker’s recovery was not satisfactory, with the worker limited in the repetitive use of their right arm. The WCB medical advisor further noted the examination indicated signs of lateral epicondylitis, but other findings did not support that diagnosis. The medical advisor recommended restrictions on repetitive use of the worker’s right arm but stated that complete rest or non-use of the right arm was not medically required or supported.

At follow up with the treating orthopedic surgeon on August 23, 2012, the worker reported right upper extremity discomfort. The surgeon confirmed the worker did not meet criteria for further surgical management and referred them to the pain clinic for further management of their myofascial discomfort.

On September 4, 2012, the worker requested Review Office reconsider the decision to end their entitlement to wage loss benefits, noting they continued to experience pain and other symptoms that disrupted their life and made their activities of daily living difficult. Further, the worker outlined that the treating orthopedic surgeon stated the earliest the worker should return to any type of work would be in October 2012 and as such, the worker required further wage loss benefits.

The WCB provided a decision letter to the worker on September 17, 2012 advising it had determined they recovered from the January 5, 2011 workplace accident and were not entitled to further benefits.

On October 23, 2012, Review Office determined the worker was not entitled to wage loss benefits after July 25, 2012. Review Office noted the usual recovery time for the surgery on January 11, 2012 was 3 months, and other than bilateral carpal tunnel syndrome, testing did not identify any abnormalities. Review Office also noted the WCB medical advisor’s opinion that the worker should not completely rest or not use their right upper extremity and that the employer had offered the worker reasonable accommodated duties. As such, Review Office found the worker did not experience a loss of earning capacity after July 25, 2012 and was not entitled to wage loss benefits.

On January 15, 2013, the worker's representative requested Review Office reconsider the WCB's decision to end the worker's entitlement to wage loss benefits as of July 25, 2012 and to end the worker's entitlement to benefits after September 17, 2012. Review Office returned the file to the WCB's Compensation Services on January 17, 2013 for further investigation.

The WCB obtained chart notes from the treating healthcare providers, and on April 5, 2013, requested a WCB medical advisor review those chart notes and the worker's file. The medical advisor outlined in an opinion dated April 8, 2013 that the initial diagnosis was right lateral epicondylopathy with a natural history of a full functional recovery, and the current diagnosis was myofascial pain in the worker's right forearm and shoulder girdle. The WCB medical advisor noted that myofascial pain was a "…term used by some healthcare practitioners when pain and tenderness are ascribed to "trigger points"” and concluded that diagnosis could not be medically related to the workplace accident and compensable injury. On April 9, 2013, the WCB advised the worker that the previous decisions of the WCB remained unchanged.

On April 22, 2013, the worker's representative requested Review Office reconsider the WCB's decision on the basis the worker continued to suffer ongoing effects from the compensable injury that prevented them from performing the modified duties offered by the employer and as such, should be entitled to further wage loss benefits after July 25, 2012. The representative noted the treating orthopedic surgeon supported the worker's inability to perform modified duties, noting in an August 23, 2012 report the worker had significant myofascial discomfort in their right forearm. With respect to further entitlement to benefits after September 17, 2012, the worker's representative submitted that the treating pain management physician diagnosed myofascial pain which related to the workplace accident or was a subsequent injury. On June 26, 2013, the employer provided a response to Review Office in support of the WCB's decisions, and the worker's representative provided a response on July 5, 2013.

Review Office determined on July 17, 2013 that the worker was not entitled to wage loss benefits after July 25, 2012 and was not entitled to further benefits after September 17, 2012. Review Office relied on the opinions of the WCB medical advisor to find the worker could perform modified duties as of July 26, 2012 and as such, did not have a loss of earning capacity or entitlement to further wage loss benefits. Further, Review Office could not establish a relationship between the worker's ongoing right upper extremity discomfort and the compensable injury resulting from the January 5, 2011 workplace accident.

The worker's representative filed an appeal with the Appeal Commission on January 18, 2023 and a hearing took place.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the Act and WCB policies 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 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. Section 27 of the Act allows the WCB to provide medical aid “as the board considers necessary to cure and provide relief from an injury resulting from an accident.”

The WCB established WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Policy") to address eligibility for compensation in circumstances where a worker has a pre-existing condition. This policy sets out that the WCB will not provide benefits for disability resulting solely from the effects of a worker's pre-existing condition as a pre-existing condition is not "personal injury by accident arising out of and in the course of the employment" but when a worker’s loss of earning capacity is caused in part by a compensable condition and in part by a non-compensable pre-existing condition or the relationship between them, the WCB will accept responsibility for the full injurious result of the compensable injury.

Worker’s Position

The worker appeared in the hearing, represented by an advocate who made an oral submission on behalf of the worker and relied upon a written submission provided in advance of the hearing. The worker offered testimony through answers to questions posed by the members of the appeal panel.

The worker’s position, as outlined by their advocate, is that the evidence supports a finding that the worker had not recovered from the effects of the workplace injuries by July 25, 2012, nor by September 17 2012, but that the worker remained unable to return to work at that time and continued to require medical treatment arising from the workplace injuries. For these reasons, the worker’s appeal should be granted, and the panel should find that the worker is entitled to wage loss benefits after July 25, 2012, and to further benefits after September 17, 2012.

The written submission outlined the worker’s position that there is a causal relationship between the worker’s current diagnoses of myofascial pain and fibromyalgia and the workplace accident, and further, that the workplace accident aggravated a pre-existing condition that arose out of the worker’s 2008 compensable workplace injury. The submission refers to the workplace practices of the employer, which the worker’s advocate argued are unsafe and contributed to the worker’s injuries. The submission further highlights the worker’s perspective on the challenges they experienced in respect of the WCB’s adjudication of their claim. The advocate also outlined the worker’s belief that their chronic pain, myofascial pain, and severe fibromyalgia, as well as the worker’s bilateral carpal tunnel syndrome can be causally related to the worker’s job duties, as an occupational disease, and argues that this has resulted in the worker’s continuing loss of earning capacity.

In the hearing, the worker’s advocate submitted that the evidence, including the medical reporting from the worker’s treatment providers, does not support the WCB’s determination that the worker was recovered from the workplace injury by July 25, 2012, nor by September 17, 2012. The advocate argued that the injury of January 5, 2011 caused an exacerbation of the worker’s 2008 workplace injury, from which injury, the advocate stated, the worker had never fully recovered.

The advocate further submitted that the modified duties offered by the employer increased the worker’s symptoms and caused an aggravation of the worker’s pre-existing left carpal tunnel syndrome, and as such, those accommodated duties were not appropriate. The advocate noted that the treating physiotherapist confirmed in July 2012 that the job duties offered to the worker were not appropriate given the worker’s left wrist condition, and that ongoing restrictions were required in relation to the worker’s injuries. The advocate relied upon the evidence contained in the notes from the August 10, 2012 call-in examination conducted by the WCB medical advisor as confirming the worker’s recovery was not at that time satisfactory and that the worker continued to have functional limitations both at work and at home. The advocate highlighted that the WCB medical advisor recommended ongoing restrictions at that time and that the treating orthopedic surgeon did not recommend a return to work until later in the fall of 2012, and on a graduated basis at that point.

In response to questions from members of the appeal panel, the worker testified that they believe they are completely disabled to date due to the workplace injury, but the worker confirmed that they have not taken part in any recent functional capacity assessment. The worker stated they are not currently receiving any treatment for their various diagnoses, except for occasional massage therapy, which only offers temporary relief of symptoms.

In sum, the worker’s position is that the evidence does not support a finding that the worker was recovered from the compensable workplace injury by July 25, 2012, nor that the worker was recovered from their injury by September 17, 2012. The worker’s position is that their ongoing disability is related to the workplace injury and that this prevents them from returning to any work. Therefore, the worker’s appeal should be granted.

Employer’s Position

The employer did not participate in the appeal.

Analysis

The questions on appeal relate to the worker’s entitlement to wage loss benefits after July 25, 2012 and to further benefits after September 17, 2012, in relation to the accident of January 5, 2011. For the worker’s appeal to succeed, the panel would have to determine that the worker continued to sustain a loss of earning capacity beyond July 25, 2012 as a result of the workplace accident and that the worker required additional medical aid benefits or had a loss of earning capacity arising from that accident beyond September 17, 2012. As detailed in the reasons that follow, the panel was able to make such findings and therefore the worker’s appeal is granted.

The panel heard submissions on behalf of the worker in relation to their recovery from the 2008 workplace injury but noted that this issue is not before the panel in this appeal and was not considered by the Review Office. Therefore, the panel confirms it does not have jurisdiction to consider or determine any issues related to the allegations of the worker’s non-recovery from the compensable workplace injury of May 15, 2008.

In considering the worker’s further entitlement to benefits arising from the compensable workplace accident of January 5, 2011, the panel reviewed the medical evidence nearest the date that the WCB determined the worker could return to work at duties that required use of their left arm only. The panel considered the physiatrist’s findings from the June 19, 2012 NCS, which indicated “…no evidence of ulnar neuropathy, cervical neuropathy, radial neuropathy, or isolated posterior interosseous neuropathy on the right side” but also recorded the worker’s report of “numbness involving the third, fourth and fifth digits on the right side” as well as weakness and cramping in the right hand. Based on the NCS findings, the physiatrist concluded that the worker’s “…sense of paresthesias radiating into the hand and weakness are an epiphenomenon of [the worker’s] ongoing tennis elbow.” The panel also noted that the WCB medical advisor indicated, on June 19, 2012, that the worker was not yet cleared for a return to work and that if the NCS findings did not reveal anything related to the compensable injury, “…then this worker really needs to get more active in order to treat [their] current symptoms and to prevent further difficulties with this arm. This could be addressed by a reconditioning program.”

The panel also reviewed the reporting from the treating orthopedic surgeon, who noted on July 9, 2012 that the worker “…continues to describe significant discomfort around the muscles bellies of the extensors and flexors in the proximal aspect of the forearm” and indicated the need for strengthening therapies so that the worker might be able to return to work after six weeks of such therapy. Further, the panel noted that on subsequent assessment on August 23, 2012, the orthopedic surgeon found the worker continued to demonstrate “…ongoing moderate tenderness to palpation over the myofascial aspects of the common extensor apparatus and common flexor pronator mass” and had pain to deep palpation in their upper arm muscles, which was “not isolated to the lateral epicondyle.” At that time, the orthopedic surgeon referred the worker for further assessment for pain management and on August 31, 2012, the surgeon completed a functional abilities form for the employer, which indicated that the worker would be unable to return to work until October 1, 2012 at the earliest, noting as reasoning that the worker had “++ pain, inability to lift/push/pull” with right arm and that the worker was being referred to a specialist in relation to myofascial pain. The panel also noted the treating physiotherapist’s July 16, 2012 report indicating the worker demonstrated “minimal improvement of pain with acupuncture, so progression of strengthening has been slow. However, client is pushing through the discomfort to try and get stronger, but needs longer.” The panel also noted that the physiotherapist deferred to the treating orthopedic surgeon in terms of the worker’s ability to return to work, but indicated to the WCB on July 20, 2012, that the worker was not able to return to one-handed duties due to their pre-existing carpal tunnel syndrome.

The appeal panel also considered the report from the WCB sports medicine advisor’s August 10, 2012 call-in examination, which recorded findings including tenderness at the lateral epicondyle, common extensor origin and extensor muscle belly when palpated directly, but no tenderness during “indirect distracted palpation” as well as reduced grip strength testing results in the worker’s right versus left hand. The WCB sports medicine advisor at that time concluded that the worker’s recovery was not satisfactory, and that the worker remained limited “with regards to repetitive use of [their] right arm and this includes both tasks at work, and activities of daily living.” The medical advisor noted the examination “demonstrated features of lateral epicondylitis” although other findings did not support the diagnosis, and recommended restricting repetitive activities, but not complete rest or nonuse of the worker’s right arm.

Based on the medical reporting, the panel finds that the evidence does not support a finding that the worker was recovered by July 25, 2012, but rather that the worker continued to experience symptoms related to the compensable injury after July 25, 2012, such that they continued to require treatment and workplace restrictions beyond that date.

The panel also considered whether the proposed modified duties offered by the employer, which we noted are not explicitly described in the file evidence, were appropriate for the worker as of July 25, 2012. We noted that the treating physiotherapist advised the WCB that the worker was not capable of a return to work with left-hand only job duties, given the limitations associated with the worker’s previously diagnosed left carpal tunnel syndrome. While the WCB acknowledged the worker’s pre-existing carpal tunnel syndrome, it found that because it was a non-compensable condition, its impact on the worker’s ability to do the accommodated duties at work did not need to be considered. The panel finds that despite the lack of support from the treating medical providers for a return to work at that time, including the orthopedic surgeon who indicated the worker would be assessed for return to work in late August, 2012, the WCB did not undertake an assessment of the worker’s functional capabilities nor of the particular job duties offered by the employer in July 2012, before determining that those duties were appropriate for the worker to undertake. Rather, the file evidence indicates that the WCB communicated with the employer to confirm the availability of left hand only job duties without confirming that the worker was physically capable of doing those duties. The panel also considered the worker’s testimony that in previous attempts to engage in one-handed duties, using their left arm only, they found that their left carpal tunnel symptoms increased, such that the worker would from time to time rest the left arm and then resume work using their right arm despite their restrictions. The worker described that “I'd be using my left like I was told to, and then it would be going numb, so I'd have to go to my right, and then that one would start to throb and burn. And so, then I'd have to go back to my left. And so, it was like a constant struggle the whole time.” Based on the worker’s evidence and the lack of medical support for the worker’s return to work in July 2012, the panel is satisfied the worker continued to sustain a loss of earning capacity resulting from the workplace accident, beyond July 25, 2012.

The panel also considered that the WCB made the September 2012 decision that the worker was recovered without reference to the medical evidence to the contrary and did not address the findings from the August call-in examination, and without addressing the continuing issues in respect of the worker’s ability to undertake accommodated duties with their left hand. We also noted the treating orthopedic surgeon’s opinion that a return to work would be considered at earliest by October 1, 2012, and the claim file evidence which confirms that the treating physician did not ultimately support a plan for a graduated return to work until November 20, 2012, as set out in the functional abilities form of that date which was provided to the employer.

Based on the evidence before the panel, and on the standard of a balance of probabilities, we are satisfied that the worker continued to experience a loss of earning capacity after July 25, 2012 as a result of the workplace injury sustained in the compensable accident of January 5, 2011. We are further satisfied that the worker required additional medical aid and sustained a further loss of earning capacity after September 17, 2012 in relation to the compensable workplace injuries. Therefore, the worker is entitled to wage loss benefits after July 25, 2012, and to further benefits after September 17, 2012. The worker’s appeal is granted.

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 17th day of November, 2023