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 wage loss benefits in relation to the April 13, 2023 accident. A videoconference hearing was held on January 14, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits in relation to the April 13, 2023 accident.

Decision

The worker is entitled to wage loss benefits in relation to the April 13, 2023 accident.

Background

An Employer’s Accident Report was submitted to the WCB on April 25, 2023, reporting the worker injured their thumbs, arms and shoulders at work with an accident date noted to be April 13, 2023. The employer noted the worker’s reporting of pain to their thumbs, arms and shoulders while performing their job duties and had sought medical treatment for same. An undated report from the worker’s physician was received by the WCB on April 28, 2023 noting the worker’s complaints of pain with repeated movements in their thumbs, arms and shoulders after being moved to a position that involved a heavier and faster workload. The worker reported they experienced pain in those areas after an hour and a half of starting the new position in the area of their thumbs and their lateral epicondyle. After examining the worker, the physician diagnosed the worker with lateral epicondylitis and queried de Quervain’s tenosynovitis. Modified duties where the worker could rest their thumbs and elbows were recommended, along with physiotherapy treatment.

On May 3, 2023, the WCB received a copy of the worker’s initial physiotherapy assessment on May 2, 2023. The worker reported to the physiotherapist their job duties required them to work on a “quick production line” but there was no specific injury that occurred, just on April 13, 2023 they began to experience pain at their right thumb, wrist, elbow and shoulder and their left thumb and shoulder, which pain was aggravated with writing or lifting. The physiotherapist examined the worker and found tenderness in the worker’s bilateral anterior shoulders, right lateral elbow, bilateral base of thumbs and anterior of their right wrist. A repetitive strain injury to the worker’s bilateral shoulders, thumbs, right elbow and right wrist was queried and it was noted the assessment was limited by pain. Light duties of maximum lift of 1 pound at waist height bilaterally, maximum push/pull of 1 pounds close to the body and avoid lifting above the shoulders bilaterally were recommended for two weeks.

The worker filed their Worker Incident Report with the WCB on May 4, 2023. The worker noted that on April1 13, 2023, they experienced the onset of pain in their right thumb, wrist, arm, left thumb and left arm while performing their job duties and spoke to their lead hand and requested to see the nurse at the nursing station. The worker advised at the nursing station, the nurse applied cream to their injured areas and advised as they were in a new position, it was normal for them to experience pain and sent them back to their position. On their next shift, April 14, 2023, the worker began to experience pain again and requested to attend the nursing station but was advised an appointment could not be arranged. The worker then advised they sought medical treatment on their own.

The WCB requested further information from the employer on May 5, 2023, including a copy of the worker’s job description and any notes from the worker’s attendance at the nursing station. On May 11, 2023, the employer provided the WCB with copies of their health unit notes for April 13, 2023 and April 28, 2023, copies of notes from the worker’s treating physician dated April 14, 2023 and April 28, 2023 setting out the worker’s restrictions and a copy of the physical demands analysis for the worker’s current job duties. The email message from the employer also noted the worker was refusing all modified duties offered by the employer. The April 13, 2023 notes from the health unit indicated the worker attended reporting pain after new job duties were added into their rotation. The attending nurse noted the worker had full range of motion, good gripping and the worker was able to move their arms with no difficulties and also noted no swelling, bruising or redness. Ice was applied to the worker’s right thumb, arm and shoulder and left thumb and arm. The April 14, 2023 note from the worker’s physician indicated that due to right thumb, wrist and arm and left arm pain, the worker should be placed on light duties for two weeks. The April 28, 2023 note from the physician initially noted the worker should be off work from April 28, 2023 to July 5, 2024 however, went on to note the worker should be provided with light duties that did not put stress on their thumbs and elbows as a result of the worker’s diagnoses of tennis elbow and de Quervain’s and if proper modified duties were not available, the worker should be placed off work for two to three weeks. The April 28, 2023 note from the employer’s health unit indicated the worker had provided them with a copy of their physician’s note. The attending nurse contacted the worker’s physician’s office for clarification of the note with the physician’s office indicating the time off portion of the note was a mistake and the worker was to be provided with modified duties for three weeks and to attend physiotherapy. The health unit note also indicated the worker had refused work the previous evening and further discussions with the worker, their union representative and the employer were being arranged. 

The WCB met with the worker on May 15, 2023 to discuss their claim. The worker noted there wasn’t a specific injury that occurred that caused their difficulties and related it to the repetitive tasks of their job duties involving the use of both hands. The worker noted on April 13, 2023, they were performing job duties that were physically demanding, specifically to their hands and arms and the area they were working in was particularly busy and when they began to experience pain in their shoulders, arms, elbows and hands, they attended at the health unit for first aid. When asked by the WCB why they felt these particular job duties caused their difficulties, the worker described the various movements involved in the duties and noted the speed of the duties required to work in that particular area added more stress to their hands. The worker advised they sought medical treatment at a walk-in clinic on April 14, 2023 due to pain and was placed on modified duties, which they had no concerns with. The WCB noted the employer’s comments the worker had refused modified duties, to which the worker advised up until April 27, 2023, they had been performing the offered modified duties but after that date, had been asked to return to the area they had previously worked in and they refused. When asked by the WCB why they refused those duties, the worker did not provide an explanation but said they preferred the modified duties initially offered by the employer. The WCB then noted the worker’s treating healthcare providers had not indicated the modified duties offered by the employer were not suitable and that the worker had not even attempted to perform the current modified duties offered. The worker described their current right thumb and elbow difficulties as ongoing and persistent weakness, with less pain and their left thumb and arm as unchanged. The WCB advised the worker their claim was acceptable however, as the worker had refused the modified duties offered by the employer, wage loss benefits would not be accepted.

On May 22, 2023, the WCB received copies of medical reports from the worker’s treating healthcare providers. The April 14, 2023 report indicated the worker’s reporting of pain to their bilateral arms, thumbs and shoulders related to repetitive work. The physician examined the worker and found tenderness at the worker’s bilateral shoulders, forearms and thumbs and diagnosed the worker with bilateral forearm, shoulder and thumb pain. Lights duties were recommended. A follow-up appointment on April 24, 2023 noted the worker continued to have pain at their bilateral thumbs, shoulders and arms and recommended ongoing light duties for the worker for two weeks. A further follow-up appointment on May 19, 2023 noted ongoing pain at their bilateral shoulders and thumbs and continued to recommend light duties.

The WCB advised the worker on May 26, 2023, their claim for an injury that occurred on April 13, 2023 had been accepted and they were entitled to medical aid benefits, however, their claim for wage loss benefits was not accepted as their employer had offered modified duties and the medical evidence did not support the worker was unable to work. The worker requested reconsideration of the WCB’s decision to Review Office on June 11, 2023, noting their treating healthcare provider placed them off work from May 19, 2023 to June 5, 2023 as they were unable to work. The employer’s representative provided a submission in support of the WCB’s decision on August 2, 2023, a copy of which was provided to the worker, who submitted a response on August 18, 2023. 

Review Office determined on August 22, 2023, the worker was not entitled to wage loss benefits. Review Office found the worker had an accepted claim for injuries sustained on April 13, 2023 and further found that the worker discontinued working on April 28, 2023, refusing to perform modified duties offered by the employer as they preferred the modified duties initially offered. Review Office determined the medical evidence on the worker’s file indicated the worker was capable of performing modified duties and the employer could accommodate the worker and found the worker refused those modified duties and as such, did not have a loss of earning capacity.

The worker filed an appeal with the Appeal Commission on August 28, 2023 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.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker. Subsection 4(2) of the Act provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Subsection 22(1) of the Act addresses a worker's obligation to co-operate and mitigate, and states, in part:

22(1) Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

…

(b) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Subsection 22(2) provides that if a worker fails to comply with subsection (1), the WCB may reduce or suspend the worker's compensation.

WCB Policy 44.10.30.60, Co-operation and Mitigation in Recovery (the "Co-operation and Mitigation Policy"), elaborates on the responsibility of both workers and the WCB in ensuring compliance with section 22 of the Act.

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "Return to Work Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. Under the Return to Work Policy employers are encouraged to provide modified or alternate work to injured or ill workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity. The Return to Work Policy states that the WCB will only become involved in two situations: 1) when financial or technical support is required to help the worker return to work and 2) when the worker and employer disagree about whether the modified work placement is appropriate.

Worker's Position

The worker was self-represented and made a submission and responded to questions from the panel with the assistance of an interpreter.

The worker's position is that he is entitled to wage loss benefits. The worker submitted that when he returned to work following his injury he was not provided with accurate information. The worker indicated that he believed the employer was switching his employment positions and this caused the worker concern as the new position was not the position set out in the worker's contract with the employer.

Employer's Position

The employer was represented by an employer advocate who made an oral submission at the hearing and responded to questions from the panel.

The employer's representative advised that the employer agreed with the WCB and Review Office decisions, and was requesting that those decisions be upheld.

The employer's representative submitted that there was evidence that the worker was fit for modified duties and evidence that the employer made suitable modified duties available for the worker. The employer's position was that the worker refused to cooperate in a return to work plan and did not adhere to subsection 22(1) of the Act. The employer's representative argued that the worker breached his duty to mitigate and is therefore ineligible for wage loss benefits.

Analysis

The issue before the panel is whether or not the worker is entitled to wage loss benefits in relation to the April 13, 2023 accident. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's loss of earning capacity was related to his April 13, 2023 workplace accident. The panel is able to make that finding, for the reasons that follow.

Based on a review of the evidence, the panel notes that the worker was not totally disabled and was able to perform light duties. The panel recognizes that the employer made efforts to provide modified or alternate work to the worker in order to have the worker safely return to work and regain their earning capacity. The evidence shows that the worker did return to work and did work modified duties for a period of time following the April 13, 2023 accident. The worker however did not agree to the modified work when the employer indicated that he had to move to a new department, citing concerns about his contract.

The position of the employer was that the worker refused the modified work. The worker's evidence however was that he was not refusing the work but that it was unclear as to what position he would eventually return to and the worker had concerns and questions about his contract. The panel accepts that English was not the worker's first language and the evidence was that an interpreter was available to the worker and present at times but not at every instance. The panel is satisfied that the language barrier was significant and played a role in the worker not agreeing to the modified work available.

The panel finds that the WCB failed to become involved, as is required by the Co-operation and Mitigation Policy, when it became clear there was a disagreement between the worker and the employer about the worker's return to modified work.

The panel acknowledges the WCB memorandum dated May 15, 2023 which sets out that the WCB met with the worker and an interpreter and advised the worker that the employer is only obligated to follow the recommended restrictions and that by not accepting the modified duties the worker "unreasonably denied his employer the opportunity to lessen the financial impact of his claim". The memo notes that the WCB advised the worker at that May 15 meeting that the claim for wage loss compensation could not be accepted. The panel finds that while the WCB provided some information regarding the obligations of the employer under the Return to Work Policy, the WCB prematurely denied the worker's claim without becoming involved prior to this date when it was clear the worker and employer disagreed about the modified work placement. The panel finds that this did not meet WCB's obligations under the Return to Work Policy.

The panel also finds that there is a lack of evidence to show that the WCB properly advised the worker on the Return to Work Policy and the worker's obligations thereunder. This is of particular importance when dealing with a worker with English as an additional language. Specifically, under the heading "Consequences of Failure to Mitigate", the Co-operation and Mitigation Policy sets out the following:

2. Before reducing or suspending compensation, the WCB will provide the injured worker with a reasonable opportunity to comply with his or her obligations under the Act and this policy. 

3. The WCB will communicate with the worker within a reasonable period of time following a reduction or suspension of benefits, to provide a further opportunity to comply with his or her obligations under the Act and this policy.

The panel finds that this did not occur. The WCB discussed the return to work barriers with the worker at the May 15 meeting and also determined on that same date that the worker's claim for wage loss compensation would not be accepted. The worker ought to have been provided with a reasonable opportunity to comply with his obligations under the Act and the Co-operation and Mitigation Policy following the May 15 meeting. The lack of involvement by the WCB prior to this date resulted in the worker being unclear about his obligations under the legislation and policies and to the permanence of the new position and the modified work.

Based on our review of the evidence, the panel is not satisfied that the worker failed or refused to reasonably participate or co-operate in the return to work process. The panel finds there was a lack of clarity and understanding which interfered with the worker's ability to co-operate in the return to work process.

As a result, the panel finds, on a balance of probabilities, that the worker suffered a loss of earning capacity as a result of his April 13, 2023 workplace incident and injury. The panel therefore finds that the worker is entitled to wage loss benefits in relation to the April 13, 2023 accident.  

The worker's appeal is allowed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of February, 2024