The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their wage loss benefits were correctly suspended effective April 3, 2024. A hearing was held on October 10, 2024 to consider the worker's appeal.

Issue

Whether or not the worker’s wage loss benefits were correctly suspended effective April 3, 2024.

Decision

The worker’s wage loss benefits were not correctly suspended effective April 3, 2024.

Background

The worker has an accepted WCB claim for a left hand sprain/soft tissue injury that occurred at work on January 17, 2023. The worker sought medical treatment at a local emergency department on January 20, 2023, complaining of pain and swelling to the fingers of their left hand after an injury at work on January 17, 2023. The treating emergency physician found swollen fingers with limited range of motion on the worker’s left hand, with tenderness to the worker’s 3rd, 4th and 5th fingers. An x-ray taken the same day was noted to be normal. The worker’s hand was wrapped with a tensor bandage, and it was recommended the worker take non-steroidal anti-inflammatory medication for pain. The worker was placed off work. At an initial appointment with their family physician on January 25, 2023, the worker was diagnosed with a left wrist sprain/soft tissue swelling. The doctor recommended no use of the worker’s left hand for 2 weeks. The WCB provided this restriction to the employer on January 26, 2023, who advised on the same date they could not accommodate the worker.

The worker received various medical treatments throughout the claim, including physiotherapy treatment to desensitize, strengthen and improve range of motion in their left hand. On March 31, 2023, the worker attended an appointment at a sports medicine clinic due to ongoing pain to their 4th and 5th fingers, that radiated up to their elbow and middle of their forearm, with reported numbness and hypersensitivity when touched. After examining the worker, the treating sports medicine physician diagnosed the worker with a left ulnar neuropathy and referred the worker for a left elbow MRI study and nerve conduction study. The left elbow MRI took place on April 25, 2023 and noted “Normal study. No obvious impingement of the ulnar nerve at the level of the elbow.” At a follow-up appointment with the sports medicine physician on April 28, 2023, the physician advised the worker that there was no objective findings of an injury and advised that they suspected chronic regional pain syndrome due to the worker’s hypersensitivity to touch and that there was no injury found. It was recommended that the worker undergo physiotherapy treatment as soon as possible. The physician advised that rehabilitative physiotherapy would be the mainstay of the worker’s treatment. The treating physician also noted the worker could return to work as tolerated as long as the worker could endure the discomfort and does not harm themselves or others in the workplace. A referral letter for physiotherapy completed by the sports medicine physician indicated the worker’s suspected diagnosis was left wrist and 3rd, 4th and 5th finger and medial elbow chronic regional pain syndrome since a crush injury to their left hand on July 17, 2023. It was recommended that the treating physiotherapist start rehabilitation and progress the worker to tolerated range of motion as the main treatment plan for chronic regional pain syndrome and to work to decrease hypersensitivity.

On May 26, 2023, the worker was seen by a physician at a pain clinic in referral by their family physician for chronic regional pain syndrome. The pain clinic physician opined that the worker appeared to have sustained an ulnar nerve injury, with a possible traction injury of the cutaneous nerves of the forearm and hand. The physician noted the worker’s reporting of inability to form a grip with flexion of the 3rd through 5th fingers, along with ongoing numbness in those fingers. Upon examining the worker, the treating pain clinic physician found the worker’s left hand grip strength was significantly reduced, with reduced flexion and ulnar deviation as well. The worker also reported pain with light touch up to their left deltoid area. No redness, swelling or discoloration of the worker’s left hand was noted. The pain clinic physician further opined the worker likely suffered a crush injury and left ulnar and cutaneous neuropathy to their left hand and referred the worker to a hand specialist and for a further MRI study on their left hand and wrist.

The worker attended for a call-in examination with a WCB plastic surgery consultant on September 26, 2023, with their report placed to the worker’s file on January 12, 2024. The consultant recorded the worker’s reporting of a crush injury to the distal fingers of the left hand on January 17, 2023. On examining the worker, the consultant found “…no visible vasomotor, sudomotor or trophic changes at the left hand/arm”, the worker demonstrated full range of motion in their left elbow, wrist and fingers and provocative and palpitation testing at the medial and lateral epicondyles and left elbow were negative. The WCB plastic surgery consultant opined that the call-in examination findings did not indicate a significant ulnar nerve injury or support a diagnosis of chronic regional pain syndrome. The consultant noted the worker underwent a left hand and wrist MRI study on November 1, 2023, which was found to be normal. The consultant summarized that the worker had been seen by 2 sports medicine physicians who recommended physiotherapy, which the worker had not attended. The consultant requested a WCB physiotherapy consultant review the worker’s file regarding physiotherapy treatment “…with the goal of normalizing activities with the left hand.” The worker’s file was reviewed by a WCB physiotherapy consultant who placed a note to the worker’s file on January 11, 2024. The consultant discussed the claim with the worker’s WCB case manager and recommended a work conditioning program. Additional medical information was placed on the worker’s file and on February 16, 2024, the WCB plastic surgery consultant had a telephone discussion with the worker’s treating pain clinic physician. The consultant advised the pain clinic physician it did not appear the worker had attended for physiotherapy treatment, with the physician advising the worker was seen by a physiotherapist at their clinic with some exercises in clinic and to be performed at home provided. The WCB consultant advised the physician the WCB would be recommending a work conditioning program, which the pain clinic physician agreed would help the worker.

The WCB spoke with the worker on March 11, 2024 and advised of the referral for the work conditioning program and requested the worker contact them once an initial assessment had been arranged. On April 2, 2024, the worker contacted the WCB. The worker advised they had an appointment with the physiotherapy clinic for the work conditioning program the previous day but did not realize they were to attend the clinic 3 days per week. The worker requested to only attend 1 day per week as they did not drive due to pain in their left hand and arm and relied on family members to drive them to their appointments. In addition, the worker noted they only had a conditional driver’s license that did not allow them to drive in urban areas. The worker further advised they did not have any other family members to assist them. The WCB case manager advised the worker if they did not attend the work conditioning program the following day, their wage loss benefits would be suspended. The WCB spoke with the physiotherapist directing the worker’s work conditioning program that same day and were advised by the physiotherapist that during the initial assessment with the worker they had booked 3 appointments for treatment. The physiotherapist also advised that the worker was aware of how often they would be attending and did not express any concerns or difficulties in attending at that time. It was noted that a family member had attended the initial assessment and the appointment on April 1, 2024 with the worker. The WCB advised the physiotherapist that the worker would not be attending their appointment for the following day. The WCB then spoke with the worker again to confirm they had advised the physiotherapist that the worker would not be attending the next work conditioning program appointment and to advise the worker their wage loss benefits would be suspended as of April 3, 2024. A formal decision letter was provided to the worker on April 8, 2024, advising that their wage loss benefits were suspended as of April 3, 2024 as they failed to mitigate their claim by attending the work conditioning program.

The worker requested reconsideration of the WCB’s decision to suspend their wage loss benefits to the Review Office on April 5, 2024. The worker noted they were unable to drive to the physiotherapy appointments due to pain and they did not have someone to drive them to the appointments 3 times per week, noting they were not properly informed the treatments would be that often. The worker also noted they had requested to attend for treatment in their region but was advised by the WCB that they could not. The worker contacted the Review Office on April 17, 2024 to clarify that it was not their driver’s license that was restricted from them driving in urban areas but the insurance coverage on a family member’s vehicle that had the restriction. The worker also advised the Review Office they felt they were unable to drive after the work conditioning program treatments due to their arm being sore after being manipulated.

The Review Office determined on May 14, 2024, the worker’s wage loss benefits were correctly suspended as of April 3, 2024. The Review Office noted the worker had continued to attend work for 5 days after the workplace accident, driving themselves to and from work on those days, in addition to attending several medical appointments both within their home region and in the Winnipeg area since that time. Also, the Review Office noted the worker reported to the WCB plastic surgery consultant at the September 26, 2023 call-in examination that their pain was worse due to driving into the city that day. The Review Office further noted the worker reported to their WCB case manager on April 2, 2024 that they had not driven since the accident due to severe pain in their left arm and did not know their way around the city. The Review Office found the worker’s statements of not driving since the accident or knowing their way around the city to not be credible. In addition, the Review Office found the worker’s statements regarding limitations to licensing and vehicle insurance to also not be credible. The Review Office further found the WCB had a discussion with the physiotherapist directing the work conditioning program who advised they had arranged the treatment appointments with the worker who had not indicated any issues with attending 3 times per week at the time of booking. In addition, the Review Office noted that the worker’s attendance at that frequency was medically required to promote the worker’s recovery and allow for a return to work. Lastly, the Review Office found the worker’s request to attend for a physiotherapy program in their home region was not warranted. It was noted that the program the worker was referred to was a specialized program not available at all physiotherapy clinics and, the Review Office found that the evidence on file indicated the worker had driven farther than the distance to the clinic offering the work conditioning program for other medical treatment.

The worker filed an appeal with the Appeal Commission on July 9, 2024 and a hearing was arranged.

Reasons

Application 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.

A worker is entitled to compensation under Section 4(1) of the Act when it is established that they sustained personal injury because of an accident at work. Under Section 4(2), a worker injured in an accident is entitled to wage loss benefits for their loss of earning capacity resulting from the accident, but wage loss benefits are not payable where the injury does not result in a loss of earning capacity during any period after the day of the accident. When a worker has such a loss of earning capacity, 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 loss of earning capacity ends, or the worker attains the age of 65 years.

The Act also provides, at Section 27(1), that the WCB may provide any medical aid to the worker that the board considers necessary or advisable to cure or give relief to the worker or for the rehabilitation of the worker.

Furthermore, the Act requires that workers take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from a workplace injury (Section 22). This duty to mitigate is further addressed in the WCB’s policy 44.10.30.60, Co-operation and Mitigation in Recovery (the “Policy”).

The Policy sets out that a worker can mitigate the negative effects of a workplace injury by reasonably participating and cooperating in medical treatment and services, and by participating fully in return to work and other programming the WCB considers beneficial to the worker’s recovery and return to work.

The Policy further sets out the worker’s responsibilities regarding medical aid and return to work programs, as well as the WCB’s responsibilities in these regards.

Worker’s Position

The worker was self-represented at the hearing and was supported by a family member. The worker made an oral presentation and answered questions posed by the panel.

The worker’s position is that the decision should be overturned, as the worker did not decline to participate in the return to work program. Rather, the worker states that there were impediments to their participation which were not addressed by the WCB.

The worker stated that they were not informed that their physiotherapy treatment would be 3 times per week. The worker described the difficulties they faced in attending appointments, including the inability to drive due to pain in their left wrist and arm, the distance from their home and the physiotherapy clinic and the lack of information provided by the WCB in regard to the treatment plan.

The worker indicated that they had requested to use a physiotherapist closer to their residence but that this was denied by the WCB.

Employer’s Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker's wage loss benefits were correctly suspended effective April 3, 2024. For the worker's appeal to be successful, the panel must find that the worker did not fail to take all reasonable steps to reduce or eliminate the impairment from their workplace injury and cooperated in receiving medical aid. As detailed in the reasons that follow, the panel was able to make such a finding and therefore the worker’s appeal is granted.

The panel finds that it was not the worker's conduct that resulted in the inability to proceed with the treatment program, but rather impediments that ought to have been identified and addressed by the WCB prior to the treatment even commencing. The panel finds that the suspension of the worker’s benefits was not appropriate at the time.

The Policy sets out that the worker’s responsibilities include regularly attending all appointments and reasonably co-operating with, participating in and following the therapy or treatment plans or rehabilitation programs prescribed by health-care providers and supported by the WCB. This includes any return to work programs. This responsibility however needs to be viewed in conjunction with the WCB’s responsibilities under the Policy, which include the requirement of the WCB to assist the injured worker in mitigating the effects of the injury by helping to identify and address impediments to the worker’s safe return to health and work.

The worker is a youthful worker who was relying on relatives that did not live in the same area as the worker to drive the worker to their physiotherapy appointments. The panel notes that the worker advised the WCB of the difficulties with driving, the long distance from their residence to the appointments and even requested to attend a different physiotherapy clinic. The WCB failed to identify and address these impediments.

The panel notes that WCB directed the worker to attend a specific physiotherapy provider that was located outside the region where the worker resided or worked without explanation. The panel notes there were most likely other physiotherapy providers that would have been able to provide treatment that would have been far more accessible to the worker. There is no explanation on the file and there was no explanation provided to the worker as to why WCB required the worker to attend this specific physiotherapy clinic.

The Policy provides guidance for a situation in which the worker has not complied with Section 22 of the Act (the duty to mitigate) and states that before taking the step of reducing or suspending the worker’s compensation, the WCB is to consider whether the worker has a reasonable explanation for non-compliance.

The panel is of the view that the worker does indeed have a reasonable explanation for non-compliance and further finds that these explanations were voiced to the WCB in advance of the worker’s compensation being suspended.

The WCB is also required, under the Policy, to communicate with the worker within a reasonable period of time following the suspension of their benefits, to provide a further opportunity to comply with their obligations under the Act. From a review of the file, it does not appear that any further discussion was had with the worker, nor was any further opportunity provided to the worker to comply with the Act.

The panel finds that wage loss benefits should be reinstated effective April 3, 2024 and directs the matter back to the WCB. 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 6th day of December, 2024