The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 6, 2000, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on April 6, 2000.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits after October 3, 1998.

Decision

That the claimant is entitled to payment of wage loss benefits after October 3, 1998.

Background

On September 17, 1998, the claimant submitted an application for compensation benefits indicating that she developed right shoulder, arm and elbow pain during the course of her employment. The date of accident was recorded as September 9, 1998. At the time of injury, the claimant was participating in a return to work program in relation to a previous compensable left shoulder and left upper arm injury. Enclosed with the application form, the claimant described in detail the work that she was required to perform between August 1998 and September 10, 1998 which led to further problems with her right shoulder, arm and elbow.

In a letter dated December 16, 1998, an advocate representing the employer, indicated that the claimant refused the offer of modified/light duties immediately following the September 9, 1998, accident. As such, the advocate was of view that the claimant was not entitled to any wage loss benefits.

On January 13, 1999, a Workers Compensation Board (WCB) adjudicator contacted the operations manager. The operations manager stated that the claimant was on WCB modified duties until September 10, 1998 doing regular duties for four hours per day when she was sent home. The claimant was on modified duties due to her left arm. On September 10th the claimant told the operations manager that her right arm was injured. The claimant was then given a return to work form and was told that the same light duties, i.e. putting in Styrofoam liners, were available. When the claimant brought the form back from the doctor it was noted that she was not to work for two weeks. On September 25th the claimant brought in a second note stating that she was not fit for any duties until October 5th, awaiting WCB assessment.

On January 15, 1999, the claimant was contacted by the WCB adjudicator for further information. The claimant stated that the operations manager did not offer her light duties when she left work in September. She said that the operations manager sent her to the doctor and said they had no light duties for her to do. She was given a return to work form to give to her doctor. She told the doctor that her company had light duties available for her, however, the doctor said that she wasn't capable of doing light duties. The adjudicator asked the claimant why she would have told her doctor that the company had light duties available, if there were no light duties. The claimant replied, "I have to tell him that the company has light duties, or I'll get in trouble."

The adjudicator then contacted the operations manager who advised that he offered the claimant light duties when he gave her the return to work form to take to her doctor. The manager indicated that he told the claimant that she could do the same light duties she had the last time, i.e. in the box room, lining trays.

Medical information received from a physician dated September 10, 1998, indicated that the claimant's right arm was visibly swollen. There was tenderness at the anterior aspect of the right shoulder, biceps muscle, lateral elbow epicondyle, and decreased range of motion in the right shoulder. The diagnosis was right shoulder tendonitis, right biceps muscle strain and right lateral elbow epicondylitis. The claimant was considered totally disabled for 14 days.

On September 16, 1998, another physician indicated that the claimant complained of a burning sensation in both shoulders/deltoid regions. It was suggested that the claimant be reassessed by a WCB medical advisor. The physician also referred the claimant for physiotherapy treatments.

On December 21, 1998, the above physician noted that the claimant couldn't use her left arm/shoulder without pain. Range of motion was normal, NV (neurovascular) was intact, and power seemed normal. The physician suggested retraining for the claimant. On January 11, 1999, a WCB medical advisor commented that there were no objective medical findings to support time loss from work and that there was no evidence that the claimant would be disabled from performing the light duties offered by the employer.

In a letter dated February 5, 1999, Claims Services advised the claimant of the following:

• that her claim was acceptable.
• that modified work was available, similar to the duties she had previously performed.
• there was no objective clinical evidence provided by the physicians to support the worker's contention of being unable to perform the modified work available. It was noted that the claimant reported discussing light duties with her attending physician, however, indicated that at no time did her employer offer light duties to her.
• Claims Services was satisfied that suitable employment was available which would have permitted the worker to continue working, without any loss of earning capacity due to the effects of her work related injury.
• the claimant was not entitled to wage loss benefits and responsibility would be limited to medical expenses directly attributable to her right shoulder and arm injury only.

On February 26, 1999, a union representative submitted an appeal to Review Office on behalf of the claimant. The union representative contended that light duties were not offered to the claimant on September 10, 1998, when the operations manager provided her with a return to work form. It was noted that the claimant had no contact with the employer after September 10, 1998, and that the claimant's husband brought the return to work form back to the supervisor and not the claimant. The union representative stated that it was true the claimant indicated to her attending physician that the company did in fact have light duties available, but none were offered. A February 18, 1999 report attached with the submission supported the claimant's position that she continued to suffer from her work related accidents and that she should avoid any repetitive work. The union representative pointed out that this would throw into question whether or not the job of placing Styrofoam liners on trays, which is repetitive work, would be suitable for the claimant.

Prior to considering the appeal, Review Office requested that statements be obtained from the operations manager, the claimant's husband and the claimant's union representative. Briefly, the operations manager advised that he offered alternate duties to the claimant on September 10, 1998 when he provided her with the return to work forms to take to her doctor. He said that he told the claimant that the light duties would be the same, i.e. lining Styrofoam trays. The operations manager indicated that he recalled that either on September 10 or 25th he spoke with the claimant, her husband and a union representative.

In the claimant's husband's statement dated March 25, 1999, he stated that he was with his wife on September 10, 1998, when she reported to the operations manager about her other arm bothering her. A union representative was also present at the time. The husband stated that no mention of any light duties was made at this meeting.

A statement was taken from the union representative on March 26, 1999. The union representative could not recall the exact date but remembered accompanying the claimant and her husband to report the injury to the operations manager. The operations manager gave the claimant a form for her doctor to fill out. The union representative did not recall the operations manager's mentioning anything about modified duties.

On April 1, 1999, Review Office determined that the claimant was entitled to payment of wage loss benefits until October 3, 1998.

Review Office noted that the issue under dispute was whether or not the worker was disabled by reason of injures to her right shoulder, elbow and biceps, such that a loss of earning capacity resulted from the injury. Both the company and the claimant had provided different accounts of what occurred at the meeting of September 10, 1998, i.e. the employer maintained that light duties were offered to the claimant and the claimant stated that no offer of light duty was made. According to Review Office, the various statements confirmed the claimant's contention that no light duty offer was made to her either in the meeting of September 10th or afterward.

The medical evidence was clear that the attending physician felt the worker was totally disabled during the acute phase of her right arm and shoulder injury. Review Office accepted the attending physician's recommendation that the worker could not have performed any type of employment immediately after the injury occurred. By October 3, 1998, the claimant had full range of movement and her neurovascular status was intact. Review Office believed that on October 3, 1998, the claimant could have contacted the employer and requested suitable modified duties such as lining the Styrofoam trays. This job was well known to her and it had been offered to her following her injuries sustained under the other compensation claim. Review Office felt that the claimant could have mitigated the consequences of her injuries by contacting the employer and requesting that she be allowed to return to the lining of Styrofoam tray job and was therefore not entitled to wage loss benefits after October 3, 1998.

On January 19, 2000, the union representative appealed Review Office's decision and an oral hearing was arranged. On March 22, 2000, the Appeal Commission received a submission from the employer's advocate in connection with the appeal.

Reasons

The evidence confirms that the claimant began to experience problems with her right arm and shoulder while participating in a modified return to work program, which had been developed in response to a compensable repetitive strain injury that she had sustained to her left arm and shoulder. According to the claimant the light duties aggravated her left shoulder problems, so she started to compensate by favoring her right arm and shoulder. The light duties involved repetitive movement of her shoulders and by early September 1998 the claimant also experienced pain in her right shoulder. On September 10th, 1998 the claimant informed her employer that she was unable to continue to perform these particular modified duties because of right arm and shoulder difficulties. The claimant was then advised by her employer to go home, as there was no other light or modified duties available.

As the background notes indicate, the worker's claim for injury to her right arm and shoulder was accepted by the WCB and benefits were paid to the claimant up to and including October 3rd, 1998. We note that at the time the benefits were terminated, no clinical examination of either the right or left shoulder had been conducted to determine whether the claimant had returned to her pre-accident status.

According to the treating physician, she saw the claimant eight times since October 3rd, 1998 and five of these visits were because of the claimant's shoulder pains. "The nature of her injury would mandate that she would only have discomfort while performing her job and present for a short time thereafter." Sometime in early October, the treating physician referred the claimant for a course of physiotherapy with respect to both shoulders. The therapist's October 29th case summary form, which was forwarded to the WCB, outlined the area of injury as "both shoulders" and a diagnosis of "repetitive strain bilateral shoulders and paracervical spine." The claimant initially received four weeks of treatment and then another four weeks ending on November 27th, 1998.

The therapist submitted a request for a course of acupuncture treatments to the area of injury (bilateral shoulders and cervical spine) on January 5th, 1999. A WCB medical advisor notified the acupuncturist in a letter dated January 21, 1999 that "the WCB will accept treatment up to the cost of $221.00" and that any further authorizations would have to be reviewed in advance. We note that a further four acupuncture treatments were approved by a WCB medical advisor on February 17th, 1999.

In accordance with the weight of evidence, we find that the claimant had not, on a balance of probabilities, fully recovered by the time her benefits ceased on October 3rd, 1998. Therefore, we further find that the claimant is entitled to the payment of wage loss benefits beyond this date.

Panel Members

R. W. MacNeil, Presiding Officer
P. Challoner, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of April, 2000