The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 6, 2000, at the request of both the claimant and the employer. The Panel discussed this appeal on September 6, 2000 and again on October 11, 2000.

Issue

Claimant's Issue: Whether or not the claimant is entitled to wage loss benefits (full benefit or partial benefit) beyond September 1, 1998.

Employer's Issue: Whether or not the claimant is entitled to wage loss benefits between May 19, 1998 and July 13, 1998.

Decision

Claimant's Issue: That the claimant was not entitled to wage loss benefits (full benefit or partial benefit) beyond September 1, 1998.

Employer's Issue: That the claimant is entitled to wage loss benefits between May 19, 1998 and July 13, 1998.

Background

During the course of her employment as a service clerk/cashier on September 4, 1997, the claimant stated that she was pulling a 20 pound bag of potatoes over a scanner when she experienced a sharp pain into her right elbow. As she continued to scan other items, the pain went into her left arm. The diagnosis recorded by the attending physician was bilateral flexor and extensor tendinitis, both forearms and wrists. The claimant was advised to avoid the use of a cash registrar or repetitive motions of her hands and forearms. The claim was accepted by the Workers Compensation Board (WCB) and the claimant returned to modified duties up to December 8, 1997, and then back to her regular work activities.

On April 20, 1998, the attending physician noted that the claimant was working the same hours as before but was complaining of muscular pain in the left arm and epicondyle as well as the triceps and deltoid muscles. In a report dated April 28, 1998, the physician stated that it would be in the claimant's best interest to avoid any and all cashiering and spend 4 to 5 hours of work doing any activity which did not involve repetitive motion, thus minimizing lifting and bending of wrists and elbows.

On May 12, 1998, a WCB medical advisor assessed the claimant. The medical advisor summarized his assessment by saying that a definitive diagnosis for the claimant's condition has not been found and that there was evidence of an early myofascial type of syndrome. Recommendations were for nerve conduction studies, x-rays, etc. The medical advisor also suggested that the claimant remain on light duties with the restrictions of no heavy lifting or lifting anything over 5 pounds, no using her arms over her head, no continuous repetitive motion and no cashiering for two months.

A progress report dated May 14, 1998 indicated that while performing sedentary duties the claimant turned her neck and felt immediate spasms in the back of her neck which became disabling. The subjective findings showed that range of motion was approximately 70% in all directions, shoulder range was good and there were some spasms in the sub-occipital muscles, particularly on the right side and the trapezius muscle. This was likely related to the cervical sprain at the work place. The physician indicated that the claimant should remain away from work between May 14, 1998 to May 18, 1998 and then return to light duties.

Ongoing progress reports were received from the attending physician dated May 22, May 28, June 3, and June 12, 1998. On this last report, the physician indicated that the claimant was complaining of symptoms compatible with carpal tunnel syndrome bilaterally and which developed over the last couple of weeks. The physician filled out an employer's assessment form (undated) outlining several restrictions which included no lifting over 3.5 kgs.; minimal use of both arms and hands; avoid operation of machinery; no standing, walking or sitting for more than 2 hours per day; avoid overhead or above shoulder work; no repetitive motions or cashiering. The physician indicated that the estimated date of the claimant's returning to duties with these restrictions was June 15, 1998.

On July 7, 1998, the claimant provided a sworn statement to a WCB field representative describing her light duty job activities commencing in September 1997 and the subsequent difficulties which she experienced with her elbows, forearms, wrists, shoulders, arms, neck, hands, and fingers.

On July 9, 1998, a WCB occupational therapist conducted a work site assessment at the claimant's place of employment. Eventually a return to work plan was developed and agreed to by the claimant. (Subsequent notes on file indicated that the claimant did not participate in the return to work as planned, because she felt that she had been pressured into agreeing with the plan.)

On July 17, 1998, Claims Services wrote to the claimant indicating that, in its opinion, the light duties provided by the employer were within her restrictions and that wage loss benefits would not be paid during the period of May 19, 1998, to July 10, 1998. Claims Services further indicated that it was of the opinion that the additional restrictions imposed had to do with external/environmental issues.

Ongoing progress reports received from the attending physician indicated that the claimant was exhibiting signs of depression. The physician also advised that the claimant could return to work on August 12, 1998, at modified duties for 3 hours per day, 3 times per week over a two week period. The claimant did return to work for three days and then went on vacation until September 1, 1998.

A union representative acting on behalf of the claimant wrote to the WCB on August 31, 1998. The union representative contended that the claimant was entitled to wage loss benefits for the period of May 19 to August 14, 1998 inclusive. The case was referred to Review Office for consideration. On February 5, 1999, Review Office rendered the following decisions:

• that the claimant was entitled to wage loss benefits between May 19, 1998 and July 13, 1998;

  Review Office was satisfied that there may have been some misunderstanding of the claimant's capabilities between May 12, 1998 and July 9, 1998. However, there was no question that the claimant did agree to return to work in a position that was suitable and respected the restrictions posed by the WCB medical advisor. Therefore, Review Office felt the claimant was entitled to benefits during this time frame.

• the claimant was not entitled to wage loss benefit between July 13, 1998 and August 14, 1998;

  Review Office indicated that there was an element of responsibility not only on the part of the employer to assist a claimant to return to work in a safe environment, but also on the part of the claimant to mitigate the consequences of the accident. The claimant, after reaching an agreement concerning a return to work program, failed to report to work citing that she was pressured into agreeing with the plan. Review Office did not agree with claimant and felt that she could have returned to work as previously outlined.

• the claimant was not entitled to wage loss benefits (full benefits or partial benefits) after September 1, 1998.

Review Office indicated that the claimant voluntarily restricted her hours on September 1, 1998. There was no indication that the claimant could not have returned to work as previously outlined. Review Office noted that the claimant experienced other problems with her neck and shoulders which were not related to the compensable injury and for which no responsibility could be assumed.

On June 8, 2000, the union representative appealed the decision that the claimant was not entitled to benefits beyond September 1, 1998. On July 27, 2000, the employer indicated that it was appealing Review Office's decision with respect to the entitlement to benefits between May 19, 1998 and July 13, 1998. An oral hearing to consider these issues was then arranged.

Reasons

As the background notes indicate, both the employer and the worker brought forward issues on appeal. With respect to the employer's issue, we find that the claimant is entitled to wage loss benefits for the period in question (i.e. between May 19th, 1998 and July 13th, 1998). In coming to this conclusion, we attached considerable weight to the opinion expressed by a WCB medical advisor in his examination notes of May 12th, 1998.

"We do not appear to have a definitive diagnosis for this lady but I believe we have evidence of an early myofascial type of syndrome. Until the investigations are completed I would suggest that she be kept on light duties only with the specific following restrictions: no heavy lifting of anything over five pounds, no using her arms over her head or for continuous repetitive motion and no cashiering. These restrictions should be reviewed in two months and following the investigations suggested."

In making the above finding, we also took into consideration the meeting that was held on July 9th, 1998. In attendance at this meeting were the employer, the claimant, the claimant's shop steward and a representative of the WCB. An agreement was reached with respect to the claimant's specific modified job duties as well as her return to work date. The details of this agreement were confirmed in a letter dated July 14th 1998 to the employer from the occupational therapist:

"Her schedule for the first week, July 13 - 18 will be to work Mon., Tues., and Fri., for 4 hour afternoon shifts. She will then return to the regular schedule at that time. The duties that had been outlined appear within her restrictions as outlined by the WCB medical advisor. The clmt. was unable to complete her assigned sedentary duties based on external/environmental issues. These have now been addressed with the employer and modifications to same have been implemented. She will only be working in the control room and space has been allocated for her to work. Both the employer and clmt. are in agreement with the above plan."

This letter certainly, in our view, suggests a resolution of the dispute respecting the appropriate duties for the claimant's scheduled return to work on July 13th, 1998.

At the request of the treating physician, an orthopaedic specialist examined the claimant on July 8th, 1998. It is significant to note the following commentary in his reporting letter to the treating physician:

"I saw this lady on July 8, 1998 with complaints of pain over her left shoulder blade region and pain on the left side of her neck.

She describes her pain on the left side of the neck as being tightness that seems to be always there. If she sits too long in one position it seems to bother her.

At this time there is no referred pain to her upper limbs. The pain that she has had in the elbows, according to her, has greatly settled down. She refers her pain as being 'repeatitive (sic) strain' in her elbows.

At this time she had full range of motion in her elbow joints. Motions of her elbow joints were painless. She was said to have minor tenderness on the medial side of the left medial epicondylar region.

She had full motion of the shoulder joints. Motions of the shoulder joints were painless. As far as I could determine, her sensations, muscle power and reflexes were normal in the upper limbs. At the time I saw her she did not complain of any numbness or tingling in her hand. She was somewhat petrified at the prospect of having pain on various movements that were done while examining her neck and shoulder. However, at the time I saw her she was able to move her neck and shoulder without having 'the anticipated pain'.

X-rays of the cervical spine that you have kindly forwarded were noted to be normal. I did arrange for her to have an x-ray of the left shoulder and the scapula. These were also noted to be normal."

The treating physician examined the claimant on August 8th, 1998 and authorized her to return to work. "I have suggested a graded return to work for her. I have asked her to return to her three day a wk. job but start with 3 hrs. for 2 wks., increase by 2 hrs. every 2 wks. until she's on her full rate duties which include 5 hrs. per day 3 times a wk. I have asked her to be reassessed in 3-4 wks. if any exacerbation of her symptoms occur. She was encouraged that staying at home at this point would do her no good & that she needs to get back into the work place to start into a more work hardening program in the work place doing some of her activities which aren't that heavy & are very light duties & work back into the work place gradually & slowly so she feels comfortable starting off slowly & then gradually increasing her work load. At this point, she was advised that it's better to be at work than to be at home where all she's doing is resting & not really exercising any of her muscles in her shoulders, arms or wrists."

It has already been previously pointed out that the parties had agreed to a satisfactory return to work program. The evidence clearly suggests that the employer was ready and willing to accommodate the claimant with sedentary work. According to the employer's evidence, "Ms. [the claimant] advised she would only be working three hours per shift and working three shifts per week when she returned to work in September 1998." We find the evidence does not support the claimant's contention that she was incapable of performing the duties outlined in the return to work agreement of July 8th, 1998. The claimant failed to report to work because she felt that she had been pressured into agreeing with the plan. After taking into consideration the availability of suitable light/modified duties together with the evidence as a whole, we further find that the claimant did not incur a loss of earning capacity subsequent to September 1, 1998. Accordingly, the claimant is not entitled to wage loss benefits, either full or partial, beyond this date.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
C. Monk, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 15th day of November, 2000