Decision #07/11 - Type: Workers Compensation
Preamble
The worker suffered multiple injuries in a work related motor vehicle accident on September 13, 2009. It was subsequently determined by the Workers Compensation Board ("WCB") that the worker was capable of returning to her pre-accident duties and that she no longer had a loss of earning capacity beyond April 15, 2010. The worker disagreed with the decision and an appeal was filed with the Appeal Commission. A hearing was held by teleconference on December 16, 2010 to consider the matter.Issue
Whether or not the worker is entitled to wage loss benefits after April 15, 2010.Decision
That the worker is entitled to wage loss benefits after April 15, 2010.Decision: Unanimous
Background
On September 13, 2009, the worker was involved in a car accident during the course of her employment as a support worker. The worker was treated for a pneumothorax and an open fracture/dislocation of the left elbow including fractures of the distal humerus and ulna. An extensive de-gloving injury to the left elbow was also reported. On September 15, 2009, the worker underwent open reduction internal fixation surgery, as well as multiple follow up surgeries leading up to final discharge on October 14, 2009. The claim for compensation was accepted and benefits were paid to the worker.
On April 8, 2010, the worker was seen by a physiotherapy consultant at the WCB's offices. Under "Discussion and Impression" of his examination notes, the physiotherapy consultant stated:
"Based on today's history and physical examination, [the worker] suffered a severe crush injury to her left elbow. The compensable diagnosis is a fracture dislocation of the left elbow with slow resolving left ulnar neuropathy. The ulnar neuropathy is substantiated by:
1. Altered sharp/dull sensation in the medial forearm, hyperthenar and fourth and fifth digits.
2. Myotomal painless weakness of the hypothenar muscles of the hand, ulnar deviators of the wrist, little finger abductors and adduction of the thumb and index finger.
3. Weakness of pinch and grip strength.
The mechanism of injury sustaining a crush injury while a car rolled over is consistent with her clinical presentation.
No further investigations or consultations appear to be required at this time. [The worker] has indicated [doctor's name], her surgeon, may be planning to perform another two surgeries to her left elbow.
She is currently over 5 months post-injury. She is capable of returning to work performing sedentary to light duties. She plans to return to Vancouver on April 20, 2010. There are no medical contraindications …Based on this call-in examination, current restrictions are:
1. Avoid lifting greater than 11 pounds bilaterally with elbows in an extended position.
2. Avoid bilateral carrying greater than 20 pounds with elbow flexed.
3. Avoid unilateral carrying greater than 10 pounds with the left upper extremity."
On April 9, 2010, the WCB case manager confirmed to the worker that based on the available medical information, it was considered that she was capable of resuming her pre-injury work duties and that no further wage loss benefits would be issued beyond April 8, 2010 (the worker's wage loss benefits were extended to April 15, 2010 based on WCB Policy 44.30.60).
On April 13, 2010, the worker appealed to Review Office that she was not entitled to wage loss benefits after April 15, 2010. In particular, the worker submitted that she was rushed into the return to work process, that she still had two more driving lessons to complete, and that her employer did not have a position for her to return to until May 2010.
On May 20, 2010, Review Office determined that the worker did not have a loss of earning capacity due to her compensable injury after April 15, 2010. Review Office was of the opinion that the worker was physically capable of driving and performing her regular duties based on the April 8, 2010 examination by the WCB physiotherapy consultant. Review Office further stated that the file evidence supported that the worker was deemed fit to return to work as of April 15, 2010. As such, any loss of earning capacity after April 15, 2010 due to the unavailability of work was not related to the compensable injury and therefore no further wage loss benefits were payable beyond April 15, 2010. On June 7, 2010, the worker appealed Review Office's decision to the Appeal Commission and a hearing by teleconference was arranged.
Reasons
Applicable Legislation
The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), regulations and policies of the Board of Directors. Under subsection 4(2) of the Act, a worker who is injured in an accident (as defined under the Act) is entitled to wage loss benefits for the loss of earning capacity resulting from the accident. Subsection 39(2) of the Act provides that the WCB will pay wage loss benefits until such a time as the worker’s loss of earning capacity ends.
Worker's Position
The worker participated in the appeal by teleconference. The worker indicated that she felt her wage loss benefits were "cut short" because she decided to improve her situation by moving to another city. She indicated that her benefits were completely terminated in the middle of April although she had been told that she would have been eased back to work. She stated that she was told that WCB would be covering her wages (topping up her wages) until she could handle the driving duties which made up a substantial portion of her job duties as a support worker.
The worker described her job as basically providing support and mentoring to individuals in their daily lives which involved driving clients to different appointments, work, school, meetings and grocery stores.
The worker indicated that her primary concern about returning to work was her ability to drive a vehicle. She stated she would not have been able to drive full-time at the start of her return to work but that she would need to ease back into driving on a gradual basis. She said her arm got very tired after a one hour driving lesson. She noted that she had not completed the driving lessons that the WCB had authorized. In a 25 hour work week, the worker estimated that she would drive for 12 to 15 hours. The length of those trips varied but could involve as much as two hours of driving at a time.
In answer to questions, the worker acknowledged that her job description included the "ability to restrain clients." She explained that her clients were "very highly unpredictable." When asked if on May 1 or April 23 would she have been able to defend or protect herself from any type of physical misconduct by a client she replied "No."
The worker said she was told by her employer that there was no work available for her until May because there were no clients available until May.
The worker indicated that she was seeking full wage loss benefits to the end of April and partial wage loss benefits for two weeks in May. She stated that had she stayed in Manitoba she would have been eased back into her position and provided benefits until approximately mid-May.
Analysis
The issue before the panel was whether the worker is entitled to wage loss benefits after April 15, 2010. For this appeal to be successful, the panel must find that the worker sustained a loss of earning capacity as a result of the accident.
The panel notes that the worker was assessed by a WCB physiotherapy consultant on April 8, 2010. In his report the consultant noted that the worker is capable of performing sedentary to light duties. The consultant recommended restrictions regarding lifting and carrying. He commented that "There are no medical contraindications for [the worker] to teach English to ESL students." The panel notes that the worker's pre-accident employment was not as an ESL teacher but as an outreach worker for persons with significant developmental disabilities.
The panel has reviewed the worker's job description and finds the worker was not fit to return to her pre-accident position as of April 15, 2010. Specifically the panel finds that the worker was not able to perform the driving duties of her position. The worker noted that she is required to drive for approximately 50% of her work time. The panel notes she had only completed two driving lessons and finds that she required additional time driving before she could perform this element of her duties. The panel agrees with the physiotherapist that the worker can drive, but not to the extent required by her pre-accident employment. As such, the worker was not recovered to the point where she could have returned to her job duties on a full time basis as of April 15, 2010.
The panel also notes that the worker may be called upon to restrain clients and finds that the worker would not have been able to perform this function as of April 15, 2010.
The panel finds that the worker is entitled to full wage loss benefits until May 1, 2010. With respect to benefits after this date, the panel accepts the worker's evidence that she would be able to participate in a gradual return to work commencing May 1, 2010 and that she had spoken with her employer who indicated that a job would have been available to her as of that date. The panel finds that the worker is entitled to additional partial wage loss benefits until May 15, 2010, calculated on the basis of a graduated return to work to be completed by this date.
The worker's appeal is allowed.
Panel Members
A. Scramstad, Presiding OfficerA. Finkel, Commissioner
P. Walker, Commissioner
Recording Secretary, B. Kosc
A. Scramstad - Presiding Officer
Signed at Winnipeg this 25th day of January, 2011