The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on February 7, 2000, at the request of the claimant. The Appeal Panel discussed this case on February 7, 2000.

Issue

Whether or not the claimant is entitled to payment of wage loss benefits beyond July 30, 1998.

Decision

That the claimant was not entitled to payment of wage loss benefits beyond July 30, 1998.

Background

While performing light duties on March 16, 1998, the claimant felt his right shoulder "pop" when he bent down to pick up a backing ring which jammed. On March 17, 1998, the treating physician reported tenderness in the right shoulder and elbow and advised the claimant to avoid using the right arm. No time loss was incurred as a result of the incident and the claimant was given alternate light duties by his employer.

On April 29, 1998, the claimant underwent x-rays of the right shoulder. The radiological report indicated no evidence of an arthropathy or calcification in the rotator cuff. The attending physician referred the claimant for a course of physiotherapy.

On June 4, 1998, the claimant contacted the Workers Compensation Board (WCB) indicating that he was seen by an orthopaedic specialist who diagnosed a rotator cuff tear as a result of the accident. The claimant advised that he had not missed any time from work but was in extreme pain taking 6 painkillers to get some sleep.

In a further conversation on June 8, 1998, the claimant advised a WCB adjudicator that he had been on light duties since the date of accident. The duties he performed included screwing rivets in and out and arranging books while seated and that this was bad for his shoulder. The claimant said that his doctor told him to stay off work completely and to avoid using his right arm. He was no longer going for physiotherapy as the treatments were not effective. The claimant also advised that the plant shuts down on July 6, 1998 for 4 weeks and would have an extended shut down until November 2, 1998.

On the same day the WCB adjudicator telephoned the employer. The employer advised that the claimant had been performing light duties in the airbrake shop, which consisted of counting and stamping parts and paper with one hand. There were no expectations as to the amount of work the claimant performed and he was allowed to work at his own pace and to assume responsibility for working within his restrictions. The employer stated that light duties were available for the claimant.

In a report dated June 8, 1998, the treating orthopaedic specialist reported that the claimant suffered an injury to his right rotator cuff and an arthrogram of the right shoulder was arranged.

On June 23, 1998, the claimant called the WCB indicating that he could no longer tolerate working due to shoulder pain and was claiming wage loss benefits. In a progress report dated June 24, 1998, the attending physician noted that the claimant's right shoulder pain was worsening. Abduction of the right shoulder was 90 degrees and flexion was 130 degrees. The claimant was considered totally disabled effective June 24, 1998. On July 17, 1998, a WCB medical advisor reviewed the case and commented that he did not know why the claimant was off work completely.

A right shoulder arthrogram was performed on July 24, 1998. No significant abnormalities were found. There was no evidence of a rotator cuff tear. On August 6, 1998, an orthopaedic surgeon stated that the claimant continued to have significant impingement and a subacromial injection was carried out. The claimant was to return for reassessment in one month's time.

On September 18, 1998, a WCB medical advisor assessed the claimant. The medical advisor concluded that, "The claimant's current status was likely a reflection of overfavouring/disuse of the right upper extremity in an environment of a previous rotator-cuff strain, with or without labral involvement." The medical advisor outlined specific management plans which included a MRI of the right shoulder. In the meantime, the medical advisor considered the claimant fit for modified duties with restrictions regarding his right arm pending receipt of the MRI results.

On September 21, 1998, the employer expressed concerns that the claimant had been offered light duties on several occasions and had always refused. The employer stated that the claimant's condition deteriorated even more when the plant shut down was announced.

On December 30, 1998, an MRI right shoulder arthrogram was performed and according to the report, no specific abnormality was seen.

In view of the MRI results and after consulting with a WCB medical advisor, the claimant was informed by letter dated January 25, 1999, that he was considered essentially recovered from the effects of the compensable injury and was fit to return to his pre-accident duties. Wage loss benefits were paid to February 1, 1999, inclusive and final.

On February 5, 1999, Review Office considered the case following receipt of an appeal from the employer. The Review Office confirmed that the claimant's loss of earning capacity between June 24 and July 30, 1998, was a reasonable consequence of the work related accident in March 1998. Review Office further determined that any absences from suitable employment after July 30, 1998, were more likely associated with the worker's failure to mitigate the effects of his work related accident and work slack and/or extended layoffs with the accident employer. On October 15, 1999, a union representative appealed Review Office's decision with respect to claimant's entitlement to benefits beyond July 30, 1998.

On February 7, 2000, an oral hearing was convened at the Appeal Commission. Following discussion of the case, the Panel requested that additional information be obtained prior to rendering a decision. On March 13, 2000, all parties were provided with the following information, which had been requested by the Panel:

• Medical summary and PPI examination results dated December 19, 1997 and March 2, 1994.
• Hearing transcript dated February 7, 2000.
• Prints of the photographs submitted at the February 7, 2000 hearing.
• Letter by the claimant's treating physician dated March 10, 2000.

On March 13, 2000, the employer's advocate was asked to provide rebuttal argument with respect to the above information. The employer's advocate's submission, which was received on April 4, 2000, was then forwarded to the claimant and his union representative for final comments. A submission from the union representative dated April 12, 2000 was later received and was considered by the Panel. On April 26, 2000, an Appeal Panel meeting was held to render its final decision.

Reasons

The claimant was injured on March 16, 1998, when he was pulling a backing ring which jammed. The claimant reported that he felt a pop in his shoulder and he saw his doctor the next day. The doctor indicated the claimant was tender in the bicipital groove and recommended that light duty employment would be suitable provided the right arm was not used. Alternate duties were offered by the employer and performed for about two weeks when the claimant requested to return to his pre-accident job. Several weeks later the claimant again expressed concern over the condition of his shoulder and alternate duties were again offered.

A variety of duties were performed over the next few months and these ranged from picking up scrap to doing some bookwork. On June 24, 1998, the claimant was removed from the workplace by his doctor who reported an increase and worsening of shoulder pain. Clinical findings were not provided on the form to the WCB and a WCB medical advisor commented that he could not see why the claimant was off work.

The Panel has examined the medical evidence on file and concluded that the evidence does not support the claimant's contention of total disability. Since the layoff the claimant has been examined by a WCB medical advisor who advised the claimant that he was fit for modified duties. The same medical advisor arranged for the claimant to have a MRI arthrogram, which was done on December 30, 1998. The results of the arthrogram were normal. The claimant's physician also responded to a request from the Appeal Panel and provided a report dated March 10, 2000. In the report the physician notes the claimant was tender over the bicipital groove and suffered a loss of some range of motion.

In conclusion, the Panel finds, on a balance of probability, that the claimant was not totally disabled beyond July 30, 1998. The employer offered alternate employment that the panel finds were within the claimant's physical capabilities and which the claimant declined. As noted earlier, the medical evidence does not support total disability. Therefore the claimant's appeal is denied.

Panel Members

P. McCullough, Presiding Officer
A. Finkel, Commissioner
R. Frisken, Commissioner
Recording Secretary, B. Miller

P. McCullough - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 14th day of June, 2000