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 after September 28, 2023. A videoconference hearing was held on April 10, 2024 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to wage loss benefits after September 28, 2023.

Decision

The worker is entitled to wage loss benefits after September 28, 2023.

Background

A Doctor’s First Report was received by the WCB on September 28, 2023. The Report noted the worker reported an injury to their right hand and wrist after they got their right hand caught in machinery and twisted their hand and wrist. The worker complained of pain in their hand and wrist, worse with use and after examining the worker, the treating physician recorded swelling and tenderness over the dorsum of the worker’s right hand and wrist, with no redness. An x-ray taken that day indicated no fracture or dislocation. The worker was diagnosed with a right hand and wrist strain and restrictions of avoiding use of their right hand was recommended.

The worker submitted a Worker Incident Report to the WCB on October 3, 2023 reporting an incident that occurred at work on September 27, 2023. The worker described their hand getting caught in machinery and twisting. At a follow-up appointment with their treating physician on October 3, 2023, the worker reported ongoing pain in their hand, which worsened after the worker attempted light duties. The physician recorded continued swelling and tenderness over the dorsum area of the worker’s right hand and wrist, and painful movements and recommended the worker be off work due to pain.

On October 4, 2023, the WCB contacted the worker to discuss their claim. The worker confirmed the mechanism of injury and advised the WCB they finished their shift after the incident and attended the following day, September 28, 2023, for medical treatment, missing two hours of work. The worker noted the physician advised them they had a wrist sprain and that the x-ray showed no fracture. The worker advised on September 29, 2023 they were in too much pain to continue working and attended on October 3, 2023 for a follow-up appointment with the physician who placed them off work but did not provide a note. The worker advised the WCB their current symptoms included swelling, pain, twisting movements hurting their fingers and wrist, and inability to hold or carry anything with weight in their right hand. Also on October 4, 2023, the WCB spoke with the employer who confirmed they had a green card completed by the worker for the incident but had not filled out their employer report yet. The employer confirmed they had modified duties available for the worker and had offered those duties on the day of the incident. The Employer’s Accident Report was received on October 4, 2023 and noted the worker was offered modified left hand only duties at the start of their shift on September 28, 2023.

The WCB provided the worker with a decision letter on October 5, 2023 advising their claim was acceptable however, they were not entitled to wage loss benefits as the employer had suitable modified duties available, which the worker had accepted. On October 18, 2023, the worker’s representative requested reconsideration of the WCB’s decision the worker was not entitled to wage loss benefits to Review Office. On the same date, Review Office returned the worker’s file to the WCB’s Compensation Services for further investigation.

The WCB spoke with the employer on October 18, 2023, who again confirmed they had one handed modified duties available for the worker as of September 28, 2023 and provided the WCB with details of those duties. On October 19, 2023, the WCB provided a further decision letter to the worker confirming their claim was accepted and they were entitled to wage loss benefits for two hours on September 28, 2023 for their medical appointment, however, further wage loss after that time was disallowed.

The worker’s representative requested reconsideration of the WCB’s decision to Review Office on November 16, 2023. The representative noted the worker was injured at work and was unable to perform the modified duties offered by the employer. On January 11, 2024, Review Office determined the worker was not entitled to wage loss benefits after September 28, 2023. Review Office found the employer had suitable one handed modified duties available for the worker, which the worker was medically cleared to do by their treating healthcare providers and as such, did not have a loss of earning capacity.

The worker’s representative filed an appeal with the Appeal Commission on January 23, 2024 and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act, the regulations under the Act and the policies established by the WCB's Board of Directors.

A worker is entitled to benefits under section 4(1) of the Act when it is established that a worker has been injured as a result of an accident at work. Under section 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 section 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.” 

WCB Policy 43.20.25, Return to Work with the Accident Employer (the "RTW Policy"), outlines the WCB's approach to the return to work of injured workers through modified or alternate duties with the accident employer. The RTW Policy describes suitable modified or alternate work as follows:

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.

The RTW 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.

There is also an obligation on the worker, under the Act, to participate cooperatively in their recovery and safe return to work. Section 22 of the Act requires all workers to:

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

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

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

Worker's Position

The worker was self-represented and was aided by an interpreter during the hearing. The worker made an oral presentation at the hearing, and responded to questions from the panel.

The worker's position was that they are entitled to further benefits. The worker states that they continued to suffer from the effects of his workplace injury after September 28, 2023 and is unable to work. The worker also states they have continued to seek medical attention to determine what is wrong with their right hand and wrist.

The worker submits that, upon their return to work after their injury, they were expected to figure out what modified duties they were capable of doing. The worker states they felt pressured by co-workers to do tasks or duties they could not do with their injury and it was for these reasons they did not feel able to return to work. The worker denied they were refusing modified work after their injury.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether or not the worker is entitled to benefits after September 28, 2023. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker had a loss of earning capacity and/or required medical aid beyond September 28, 2023 as a result of their September 27, 2023 workplace accident. The panel is able to make that finding.

The WCB contacted the worker on October 5, 2023 and October 18, 2023 but in doing so did not meet the requirements set out in the RTW Policy and accompanying Administrative Guidelines. The WCB indicated that there were modified duties available but there is a lack of evidence before the panel that an analysis of the modified work being offered was completed. The WCB also did not address the concerns of the worker regarding the modified work being offered. The panel accepts the worker's evidence that they felt pressured to do tasks they were was unable to physically do following his injury.

The panel places weight on the physiotherapy notes and discharge report that state, as recently as February 2024, that the worker's progress has remained limited and that the worker has limited function, limited strength and numbness in his right hand and wrist. The Physiotherapy Discharge Report encourages the worker to attend for an MRI for better understanding of their condition and the reasons for lack of improvement/progression since the injury. In addition, the Physiotherapy Discharge Report indicates that a WCB assessment is likely required. Neither an MRI nor a WCB assessment has been completed.

The panel also acknowledges and relies on the medical evidence of the worker's treating physician which indicates that the worker has pain in their hand and wrist post September 28, 2023. The physician indicates in a progress report of November 24, 2023 that the worker has mild swelling and tenderness "over the dorsum of right hand and wrist."

Based on the foregoing, the panel acknowledges that the worker is continuing to seek medical help well after September 28, 2023 and the panel accepts that the worker was still experiencing symptoms from the workplace accident.

In conclusion, the panel is able to find, on a balance of probabilities, that the worker had a loss of earning capacity or required medical aid after September 28, 2023 as a result of their September 27, 2023 workplace accident. The panel therefore finds that the worker is entitled to benefits after September 28, 2023.

The worker's appeal is granted.

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 7th day of June, 2024