Decision #33/24 - Type: Workers Compensation


The worker is appealing the decision made by the Workers Compensation Board ("WCB") that they are not entitled to partial wage loss benefits after June 23, 2023. A hearing was held on March 7, 2024 to consider the worker's appeal.


Whether or not the worker is entitled to partial wage loss benefits after June 23, 2023.


The worker is entitled to partial wage loss benefits after June 23, 2023.


The WCB accepted the worker’s claim for a crush injury to their right thumb that occurred at work on August 9, 2021 when a socket flew off an impact gun and hit their right thumb nail. When the worker sought medical treatment on August 10, 2021, the treating physician diagnosed a proximal phalanx fracture and subungual hematoma, and recommended restrictions of no use of the right hand for three weeks. In discussion with the WCB on August 19, 2021, the worker confirmed the mechanism of injury and noted there were no one-handed duties available, so they remained off work. After the treating physician recommended further restrictions on August 30, 2021, the employer confirmed there were no modified duties available for the worker.

On attending an initial physiotherapy assessment on September 7, 2021, the worker reported sharp throbbing pain through their right thumb into their lower forearm during rest, made worse with movement, numbness into their right thumb and difficulty with using their right thumb in most ranges of motion. The physiotherapist noted bruising and blackened nail/cuticle in the right thumb and reduced range of motion with pain and diagnosed right thumb distal phalanx fracture. The physiotherapist recommended restrictions of light desk work, no lifting or push/pull over two pounds with the right hand, and no repetitive tasks with right hand, which the employer could not accommodate.

The physiotherapist updated the worker’s restrictions on October 2, 2021 to perform desk work and administrative duties, no lift/push/pull greater than 5 pounds with right thumb and no repetitive loading of right hand. Following discussions between the worker, the employer and the WCB, the worker returned to work with modified duties and reduced hours on October 18, 2021. The worker continued to receive treatment, including physiotherapy and with their treating healthcare providers, and returned to their regular hours at the end of January 2022.

When the WCB contacted the worker on March 4, 2022 for a status update, the worker advised work was going well and they were wearing a splint on their thumb, which helped in performing their job duties. In a further status update provided on April 5, 2022, the worker advised there was no change from the previous update, but noted they experienced thumb pain with any kind of pressure and had not found any significant improvement with physiotherapy. In respect of the job duties, the worker acknowledged they were managing with no issues.

At follow-up on March 28, 2022, the treating sports medicine physician noted the worker had continuing pain but “…good passive range of motion…” with their thumb. The physician noted the worker may not be able to return to their pre-accident job duties, with crush injuries taking time to recover.

On May 3, 2022, the worker advised the WCB that they were frustrated with their recovery and had not noticed much improvement since the last discussion. The worker confirmed they continued to work modified duties, but those job duties were not what they wanted to be doing. The worker reported they had an appointment with the sports medicine physician at the end of June for further x-rays and investigation.

The June 20, 2022 report from the treating sports medicine physician indicated the worker had excellent range of motion with their thumb but was still experiencing numbness at the tip, with sensitivity to pressure. The physician noted their belief due to the worker’s injury, the worker’s ability to do fine motor tasks was affected, which would make it difficult for the worker to return to their pre-accident job duties.

On July 14, 2022, in a discussion between the WCB and the employer, the employer noted their concern with the worker’s current accommodated position and advised they would like to plan a more suitable and viable long term position for the worker based on detailed permanent restrictions.

At the request of the WCB, the worker attended a call-in examination with a WCB medical advisor on September 15, 2022. On examining the worker, the medical advisor determined that temporary restrictions, as follows, would remain in place for three months: avoid repetitive gripping with the right thumb and avoid fine motor work with the right thumb. The medical advisor indicated the worker had not yet reached maximum medical improvement and that should be reviewed in 6 months.

At follow up on September 20, 2022, the treating sports medicine physician noted no surgical intervention was recommended and concluded the injury would not improve enough for the worker to return to their pre-accident job duties. The WCB provided the employer with the updated temporary restrictions on October 3, 2022.

The worker advised the WCB on October 18, 2022 that they gave two weeks of notice to the employer and would start a new job with a new employer on November 1, 2022. On the same date, the WCB advised the employer that the worker would continue to be paid partial wage loss benefits based on their earning capacity at their new employment until permanent restrictions were in place.

A WCB plastic surgery consultant reviewed the worker’s file on December 16, 2022 and recommended a functional capacity evaluation (FCE) to determine the worker’s functional abilities. That evaluation took place on March 1, 2023 and the WCB plastic surgery consultant reviewed the results on March 2, 2023. The consultant concluded the worker reached maximum medical improvement and recommended permanent restrictions based on the worker’s demonstrated abilities. On March 3, 2023, the WCB advised the employer of the worker’s capabilities, and on March 9, 2023, the employer provided the WCB with a proposed alternate permanent position for the worker, noting the position was similar to the worker’s pre-accident job duties but within skill groups that involved lighter duties.

On March 16, 2023, the worker contacted the WCB with their concerns about the restrictions provided to the employer, noting that although a pinch test was conducted during the evaluation, the restrictions did not note that testing, which was a concern as it was the worker’s thumb that was injured and continued to cause the worker difficulties. The WCB confirmed to the worker the nature of the position offered by the employer, and also noted that another position may be available in the alternative. The worker also noted the potential alternative position was not the type of work they wanted to do. In another call with the WCB on March 20, 2023, the worker stated they did not believe the offered position was within their restrictions and noted that the pay for the alternative position would be lower than the offered accommodation. The worker confirmed they were willing to attend a further FCE to have pinch, press or torque testing conducted, with the worker advising they would.

On March 29, 2023, the therapist who conducted the FCE confirmed with the WCB pinch testing was conducted during the March 1, 2023 FCE, with the results being 33 pounds of pinch on the left and 18 pounds on the right. A WCB medical advisor reviewed the worker’s file, including the information from the FCE on April 20, 2023 and provided an opinion that the worker had permanent restrictions of avoid repetitive forceful gripping with the right thumb and no more than 18lbs force with the right thumb, replacing the restrictions previously provided. The WCB provided this information to the employer on the same date.

On April 21, the WCB requested its rehabilitation specialist assess the proposed job duties provided by the employer.

The worker attended another call-in examination with a WCB plastic surgery consultant on May 18, 2023. In the report from that examination, the WCB consultant confirmed the restrictions set out in the March 1, 2023 FCE, along with restrictions of right thumb pinch to 18 pounds and avoid use of high impact tools with significant force applied to the right thumb were permanent restrictions.

The WCB rehabilitation specialist’s worksite assessment report of May 23, 2023 indicated they met with the employer at the worksite to observe the two proposed positions for the worker to determine if those offers fell within the worker’s permanent restrictions. The rehabilitation specialist confirmed both positions would be suitable and were within the worker’s restrictions, noting that the worker could bring their own tools, organize their labour according to their own preferences, and space out their tasks with intermittent breaks as needed and within reason. The specialist also noted the worker could discuss any concerns as they arose with their supervisor with a view to possible accommodation and strategy and could wear any prescribed splinting or brace as recommended by the worker’s medical providers.

On June 14, 2023 the WCB confirmed the worker’s permanent restrictions to the employer. The WCB presented the employer’s primary offer to the worker on June 15, 2023. The same day the worker indicated their concern that the job duties would require working outside their permanent restrictions and also noted concerns about the pay for that position. On June 16, 2023 the WCB rehabilitation specialist confirmed their conclusion that both proposed positions fell within the worker’s compensable restrictions. On the same day, the worker advised the WCB that they rejected the offer because they believed the job duties would require them to work outside their restrictions. The worker also indicated they were not interested in the work offered. The WCB then advised the worker that their entitlement to partial wage loss benefits would end as of June 23, 2023 as it had determined the employer had offered suitable alternate accommodated duties, which the worker had advised they would not be accepting.

On July 18, 2023, the worker’s representative requested Review Office reconsider the WCB’s decision. In their submission, the representative outlined the nature of the worker’s injury and noted the permanent restrictions would prevent the worker from being able to meet all the requirements of the offered position. Review Office determined on September 22, 2023 that the worker was not entitled to partial wage loss benefits after June 23, 2023. Review Office found the alternate accommodated position offered by the employer was suitable and within the worker’s permanent restrictions, and that the employer attempted to accommodate the worker before the permanent restrictions were established, until the worker obtained employment with a different employer. Review Office acknowledged that the offered position was not the job the worker wanted to do, but found the offered position was a suitable permanent work placement that would eliminate the worker’s loss of earning capacity.

The worker’s representative filed an appeal with the Appeal Commission on October 27, 2023 and a hearing was arranged.


Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the “Act”) regulations under the Act and the policies established by the WCB's Board of Directors. The provisions of the legislation and policy in force at the date of accident are applicable.

The question on appeal relates to the worker’s entitlement to wage loss benefits. The Act sets out in s 4(1) that a worker is entitled to compensation for a personal injury caused by an accident arising out of and in the course of employment. Section 4(2) provides that wage loss benefits are payable for a worker’s loss of earning capacity resulting from the accident on any working day after the day of 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.

The Act imposes obligations upon an injured worker under s 22(1) to:

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

b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and 

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

Wage loss benefits are payable for any loss of earning capacity resulting from an accident pursuant to s 37 of the Act and are to be calculated in accordance with s 39 of the Act. Section 39(2) provides that wage loss benefits are payable until the loss of earning capacity ends as determined by the WCB or the worker reaches 65 years of age.

The WCB established Policy 43.20.25, Return to Work with the Accident Employer (the “Return to Work Policy”) to outline the WCB’s approach to return to work of injured workers through modified or alternate duties with the accident employer. This policy sets out that employers are expected to consider the following objectives in the following sequence:

1) Return to the same work with the accident employer. 

2) Return to modified work with the accident employer. 

3) Return to different (alternate) work with the accident employer.

The Return to Work Policy encourages employers to provide modified or alternate work to injured workers as part of a process of safely returning those workers to work and helping them to regain their earning capacity and outlines that the WCB will only become involved when either the worker or the employer requires financial or technical support to help the worker return to work or when the worker and the employer disagree about whether the modified work placement is appropriate.

The Return to Work Policy goes on to define suitable work as work that:

…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.

The Policy further set outs that to determine if the worker is medically able to perform the essential duties of the worker’s pre-accident employment, the WCB will compare the worker’s compensable medical restrictions and capabilities to the essential duties and demands of the work. Furthermore, if there is a dispute about whether the modified or alternate duties are suitable, or whether a worker is medically able to perform the essential duties of the pre-accident job or suitable work, the WCB will make the final determination and may arrange for a worksite analysis. The Policy provides that 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 and that 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.

Worker’s Position

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

The worker’s position is that the job offered by the employer is not suitable to the worker in that it requires the worker to work outside their restrictions, and further, does not permit the worker to earn income at the same level as they did pre-accident, despite the rate of pay, on its face, being the same. The worker’s counsel submitted that the WCB’s assessment of the job requirements was insufficient to determine that the job offered by the employer was suitable for the worker, and that the evidence rather supports a finding that the job offered was not suitable in that the worker was not medically able to undertake the job duties required, the job duties would aggravate the worker’s continuing symptoms, and the worker would not be able to earn an income in that job equivalent to their pre-accident income. As such, the worker’s position is that they should be entitled to ongoing partial wage loss benefits despite having refused the offered position and continuing in their employment with a different employer.

Employer’s Position

The employer did not participate in the appeal.


The worker appealed the WCB’s decision that they are not entitled to partial wage loss benefits after June 23, 2023. For the worker’s appeal to succeed, the panel would have to find that the worker continued to sustain a loss of earning capacity beyond June 23, 2023 as a result of the injuries sustained in workplace accident of August 9, 2021. More specifically, the panel would have to determine that the alternate work offered by the employer was not suitable work and therefore the worker’s entitlement to partial wage loss benefits should not have been eliminated upon the worker’s refusal of that work. As detailed in the reasons that follow, the panel was able to make such a finding and grants the worker’s appeal.

The panel considered that the Act requires the WCB to provide wage loss benefits for a loss of earning capacity that results from a compensable injury, and further that an injured worker participates in any return to work program that the WCB considers necessary to promote their recovery and to reduce or eliminate any loss of earnings resulting from an injury. The WCB’s Return to Work Policy further outlines the obligations of the WCB, the accident employer and the worker in this respect and is applicable to the circumstances before us. Here, the WCB determined the worker was no longer entitled to partial wage loss benefits when the worker refused to participate in the alternative job offered by the accident employer, which the WCB had determined to be suitable work based upon its assessment of the worker’s permanent restrictions and the job requirements.

The panel considered the job description provided by the employer and the evidence of both the worker and their coworker as to the nature of the work. We noted the coworker’s testimony that the job frequently requires “reaching in somewhere and you can’t see” and noted that:

“So, for certain things, yes, you'd use only your dominant hand. But like I was saying, sometimes to -- to get in on, say, one side of the [equipment], just the --the physical location of where you can actually access it would require you to use your left hand or your right hand, depending on which side you're trying to get at. And there's no really way around it because your arm doesn't bend 180 degrees. So, you -- you would have to use one hand and one hand only.”

The coworker also testified to the need to constantly use both hands in the course of their work, not only the dominant hand, for gripping tools or parts. The coworker also explained the way they are paid in their profession and the worker testified that working in the proposed alternate job would place them in a new role where they would be slower and less capable due to their inexperience, and that given their restrictions, they would require frequent assistance from others in the workplace, which may not be readily available due to the nature of the pay structure. The worker testified to their belief this would necessarily limit their income earning potential.

The worker further testified that the job offered by the employer would require gripping, pinching, pulling, grasping with both hands, sometimes while unable to see their hands, and further, would cause pain to their injured thumb, which is sensitive to pressure given the absence of a thumb pad. The panel noted the testimony and reporting from the treating orthopedic surgeon who is a specialist in hand, wrist, and elbow surgeries supports the worker’s statement in this regard. The surgeon confirmed the worker sustained a comminuted distal phalanx fracture in their right thumb and that since the injury, the worker’s thumb pad is “completely atrophied, which is a bit uncommon for this type of injury, but not unheard of.” The surgeon described the effect of the absence of a thumb pad as follows:

“…[T]humbs are fairly important things that contribute to about 40 percent of our hand function. So, without a pad there, it makes pinching things, especially grasping and lifting things fairly difficult. Because essentially you have skin and bones. So, essentially, when you're gripping something or pinching something instead of pinching it with a protective barrier, you're pinching on right on bone, and that is quite painful.”

The surgeon further testified that this thumb pad would not return, indicating that “We can certainly speculate on why the cause of that is, but certainly with a crush injury, likely what happened is that in addition to nerve damage [the worker] also had damage to the arterial supply of the fat pad. And that's why it's atrophied. Or in [the worker’s] case, completely gone away.” The surgeon further explained that nerve damage is greatest with crush type injuries, and that the worker’s symptoms of numbness and tingling indicate such damage. The surgeon indicated that the worker’s symptoms of pain, cold sensitivity and sensitivity of their thumb are all expected for the kind of injury the worker sustained. In reference to comments made in the medical reporting about the worker’s difficulty with proprioceptive senses, the surgeon explained that these are the senses that provide us with:

“…an idea of where things are in relation to your surrounding. So, it's what essentially prevents us from toppling over if we're standing in one spot, or if you close your eyes more, even so, your proprioceptive senses really kick in. …That's not any different than when we talk about the hand. So, meaning that, you know, we use our vision to kind of guide what we want our hands to do, but sometimes we don't do that. Sometimes we know where things are. And we reach out for those things. Or you know, in my case, like, I know what my tools feel like…. And so, when we lose that sense of that, then things just take longer to do, and we can't do it quite as well. Partly because we can't take our eyes off of things. And to reach for things, we have to use our vision to seek those things out and then look to see that we're grasping something in order to…use it.”

The panel accepts and relies upon the evidence from the worker’s treating orthopedic surgeon that the worker will continue to have pain due to the loss of the thumb pad, problems with pinching between their right thumb and forefinger, and problems with sensitivity or feeling in their thumb, including numbness due to nerve damage. The panel further accepts the surgeon’s testimony in relation to the impact of the worker’s diminished proprioception upon their ability to work in “blind” spots.

The panel also accepts and relies upon the worker’s testimony and that of their coworker, as to the physical requirements of the proposed job duties and note that this work would require that the worker rely not only upon their dominant hand but also their injured hand. We accept their evidence that certain tasks that would require use of both hands at the same time, or the use of the injured hand to meet positional requirements, or the use of the worker’s injured hand while out of sight to the worker.

It is not clear to the panel from our review of the documents provided by the WCB rehabilitation specialist whether the wide range of specific physical tasks required as part of the offered primary alternate job were addressed or considered in the assessment of May 23, 2023. We noted the initial service request outlined that the worker’s permanent restrictions are to avoid repetitive forceful gripping with the right thumb and use no more than 18 pounds of force with the right thumb. In terms of medical status, that request outlines that the worker is stable but that “WCB medical advisors have commented [the worker] should continue to recover as the nerve regenerates and [their] sensitivity issues should decrease. Nerve regeneration is 1 inch per month as per information on line.” In this regard, the panel noted that the information provided to the specialist does not align with the treating surgeon’s view that the worker would likely continue to have the same symptoms over time. We further noted that the rehabilitation specialist arranged to meet with the employer on site to “observe and assess the two accommodated positions being offered to determine whether they fall within the worker’s current medical restrictions.” The May 23, 2023 assessment report contains photo of various tools and equipment to be used by the worker in the proposed job and references “demonstration of the below tasks” followed by a list of a range of possible job duties, including diagnosing and repairing various problems. Notably, there are no photos or detailed descriptions of those tasks, and the report does not indicate any further details, other than setting out that the specialist “determined that all the below tasks fell within the above listed medical restrictions.” Furthermore, the specialist outlines that they also reviewed the tasks associated with the second alternate job offered by the employer to the worker, with additional equipment photographs provided.

The panel notes that just one day was set aside for this assessment and the specialist wrote their report the same day. The panel does not accept that it is probable that a full demonstration of the number and variety of job tasks described in that report could have occurred within that limited time. Further, we noted there is no evidence that the employer provided any job demands analysis, nor that the WCB requested such information in relation to the proposed alternate work. Given the medical reporting which indicated the worker would likely require retraining for a new profession and could not resume their pre-accident work, such information could have assisted the WCB in assessing whether the offered work was suitable in terms of the worker’s permanent restrictions.

The panel is not satisfied based on the rehabilitation specialist’s May 23, 2023 report that their assessment was sufficient to determine that the wide range of tasks included in the primary alternate job were tasks that the worker was medically able to perform without aggravating or enhancing their injury and within the scope of the worker’s permanent restrictions. The panel also noted that on June 16, 2023 the rehabilitation specialist reviewed their report considering an update to the permanent restrictions as outlined in the WCB’s letter to the employer of June 14, 2023 and the specialist briefly restated their conclusion that the proposed positions fall within the worker’s compensable medical restrictions without providing any further analysis.

The panel finds that the evidence does not support the WCB’s conclusion that the job tasks required as part of the initial offer of alternative employment were fully within the capabilities of the worker and within the limits of their permanent restrictions, as the workplace assessment undertaken was not sufficiently thorough to form any conclusion. Furthermore, based on the evidence from the treating orthopedic surgeon, the worker would more likely than not struggle with many of the tasks falling within the requirements of the primary alternate job and would also experience an increase in symptoms arising from those tasks, which we find would rather suggest that the worker was not medically able to do the work required as part of the primary alternate job offered to them. As such, we find that the evidence does not indicate that this was suitable work as defined in the Return to Work Policy.

The panel further noted that although the employer advised the WCB that a second alternate job was available to the worker, and the rehabilitation specialist apparently assessed this position as well, the WCB failed to formally offer this job to the worker when they declined the primary job offer. The panel acknowledges that the worker previously expressed to the case manager their lack of interest in the second alternate job; nonetheless, we find that the WCB ought to have presented this option to the worker together with the potential consequences of refusing to accept it, before determining the worker’s partial wage loss benefits would be terminated based on their refusal of the alternate work offered by the employer.

Based on the evidence before the panel and on the standard of a balance of probabilities, we are satisfied that the alternate work offered by the employer was not suitable work and therefore the worker’s partial wage loss benefits should not have been eliminated upon the worker’s refusal of that work. Therefore, the worker is entitled to partial wage loss benefits after June 23, 2023 and the appeal is granted.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
S. Briscoe, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 11th day of April, 2024