The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on June 19, 2001, at the request of legal counsel, acting on behalf of the claimant. The claimant was appealing two decisions that were rendered by the Review Office of the Workers Compensation Board (WCB). The Panel discussed the appeal on June 19, 2001.

Issue

Whether the claimant's work related accident in July 1995 has resulted in any significant handicap to employment consistent with his skills and experience before the accident; and

Whether the WCB should extend rehabilitation benefits and services beyond January 17, 1997.

Decision

That the claimant did have compensable restrictions in 1997 in relation to the compensable injury of July 1995; and,

That the WCB should extend rehabilitation benefits and services beyond January 17, 1997.

Background

This case was previously the subject of a non-oral file review which was held at the Appeal Commission on November 13, 1997. A complete background surrounding the details of this case which led to the non-oral file review can be found in Appeal Panel Decision No. 28/98 and will not be repeated in its entirety at this time.

Briefly, the claimant wrenched his right shoulder, neck and arm on July 13, 1995, when he lost his footing while climbing down a ladder of a tank car. The claimant was initially diagnosed with a pericapsulitis of the right shoulder. On February 23, 1996, the claimant underwent an acromioplasty for an impingement syndrome in his right shoulder. The claim was accepted by the WCB and benefits were paid accordingly.

At a follow-up visit on July 15, 1996, the orthopaedic surgeon indicated that the claimant continued to have signs of impingement syndrome and a subacromial bursal injection was attempted to reduce the subacromial bursa inflammation and speed his recovery. This helped initially to improve movement but did not alleviate the discomfort.

On September 19, 1996, the claimant was assessed by a WCB medical advisor who concurred with the attending orthopaedic surgeon and the family physician that the claimant should return to work activity and should carry on with his non-supervised physiotherapy program. It was felt that the claimant should be cautious in regard to ladder climbing, otherwise there did not appear to be any restrictions imposed. Based on these comments, primary adjudication determined that the claimant was capable of performing his pre-accident duties without restrictions. As the accident employer was unable to accommodate the claimant with employment, vocational rehabilitation services was provided to the claimant with job search assistance between October 25, 1996, and January 17, 1997.

In March 1997, a worker advisor referred to a February 20, 1997, report by a second orthopaedic surgeon which demonstrated that the claimant had not recovered from his compensable injury and had restrictions. Hence, the worker advisor requested that the claimant be reinstated benefits and provided with additional vocational rehabilitation assistance. On March 27, 1997, Review Office ultimately determined that the claimant's loss of earning capacity after October 24, 1996, more likely resulted from the lack of available employment opportunities than to any functional impairment of his right shoulder. Subsequent file documentation showed that the claimant was referred to another orthopaedic specialist to consider a diagnostic arthroscopy of the right shoulder as the claimant had not made any substantive gains with treatment.

On November 13, 1997, a non-oral file review was held at the request of the worker advisor who appealed Review Office's decision of March 27, 1997. Following discussion of the case, the Appeal Panel requested updated medical information from the treating orthopaedic specialist.

On February 12, 1998, the Appeal Panel determined that the weight of evidence did not support the claimant's contention that his July 1995 compensable accident resulted in any significant handicap to employment consistent with his skills and experience before the accident. In reaching this decision the Appeal Panel referred to the opinion expressed by the second treating orthopaedic surgeon in his letter dated December 4, 1997. The Panel stated that the evidence did not suggest the necessity to impose any restrictions on the claimant's work activities as a consequence of his compensable injury. The consensus of medical opinion was that the claimant should return to work. The Appeal Panel ruled that the WCB "need not extend rehabilitation benefits and services beyond January 17, 1997."

Subsequent file records showed that on February 17, 1998, the claimant was unloading a truck trailer full of welding cylinders when his right shoulder and arm developed swelling and limited movement. On March 13, 1998, the attending physician reported that the claimant's right shoulder revealed swelling anteriorly and point pain over the anterior joint capsule lateral to the surgical wound which was fashioned to remove his acromioclavicular joint. The physician was of the view that the claimant's compensable injury had recurred.

On June 10, 1998, primary adjudication informed the claimant that the WCB would not accept responsibility for his current right shoulder difficulties. The decision was reached based on the following factors:

a) a WCB medical advisor offered the opinion that there was no causal relationship between the July 1995 compensable injury and the claimant's current shoulder difficulties; and

b) the previous Appeal Panel's decision that the claimant's work related accident in July 1995 had not resulted in any significant handicap to employment consistent with his skills and experience before the accident.

In a letter dated November 16, 1998, an orthopaedic surgeon reported that the claimant continued to experience difficulties with his right shoulder following an injury in July 1995 and that the claimant was on a waiting list for a shoulder arthroscopy. On June 1, 1999, the claimant underwent the following surgical procedure: "Arthroscopy, arthroscopic debridement free edge subscapularis tendon tear, arthroscopic subacromial bursectomy."

On November 26, 1999, the claimant was informed that the operative report of June 1, 1999 was forwarded to a WCB medical advisor for review. The medical advisor could not identify any causal relationship between the compensable injury and the operative findings of June 1999. Based on this opinion, primary adjudication denied responsibility for the June 1, 1999 surgery along with medical treatment, time loss or medication as a result of the surgery.

In a decision dated December 17, 1999, Review Office confirmed that no responsibility should be accepted for the claimant's right shoulder difficulties that commenced on February 17, 1998, and that no responsibility could be accepted for the costs associated with the June 1, 1999, surgical procedure. Review Office stated that it concurred with the opinion expressed by the WCB orthopaedic consultant that it would be highly unlikely that the partial tear reported at surgery on June 1, 1999 would be related to the July 13, 1995 accident. Review Office was also of the view that the worker's shoulder difficulties in February of 1998 were more than likely precipitated by a recent event occurring around that time than to the accident of July 1995.

On September 8, 2000, Review Office considered the case again at request of legal counsel, acting on behalf of the claimant. The issue that Review Office was asked to address was "whether a Medical Review Panel (MRP) should be convened under Section 67(4) of the Act" (the request for a MRP was previously denied by primary adjudication on June 9, 2000, July 6, 2000 and August 29, 2000). Review Office granted the solicitor's request for a MRP and which was later held on December 28, 2000.

In a decision dated February 9, 2001, Review Office accepted responsibility for the costs and time loss incurred by the claimant as a result of the June 1, 1999, surgical procedure and for the claimant's right shoulder difficulties that commenced on February 17, 1998. Review Office accepted the MRP's opinion that:

• The claimant's ongoing difficulties which caused him to stop work in February 1998 were a consequence of the July 1995 accident;
• The June 1, 1999, surgery was a consequence of the July 1995 accident;
• The claimant still had evidence of tendonitis in his right shoulder and that he should have permanent restrictions regarding repetitive over head lifting. Review Office accepted the recommendations made by the MRP with respect to the claimant's ongoing condition and the need for permanent restrictions.

On February 27, 2001, legal counsel for the claimant requested reconsideration of Appeal Commission Decision No. 28/98. This request was based on the opinion that the MRP's findings represented evidence that was both "substantial and materials" as required under Section 60.91(2) of the Act. The request for reconsideration was granted by the Chief Appeal Commissioner on April 3, 2001. On June 19, 2001, oral hearing was held at the Appeal Commission.

Reasons

The Appeal Panel was asked to reconsider the Appeal Commission decision 28/98 which determined at that time that the weight of the evidence did not support the claimant's contention that his July 1995 compensable accident resulted in any significant handicap to employment. This decision was based upon the available evidence in existence at the time of the hearing which included an extensive opinion rendered by the claimant's second treating orthopedic surgeon in a letter dated December 4, 1997. Specifically, the specialist was of the opinion after reviewing an MRI scan that no abnormality of the rotator cuff was identified including no obvious labral tear. It was recommended by the specialist that the claimant should return to his usual activities including work.

It was on the basis of this opinion and the balance of the other evidence on the claimant's file that the Appeal Panel at that time was not prepared to suggest the necessity to impose any restrictions on the claimant's work activities as a consequence of his compensable injury. This is a decision that the claimant's legal counsel at the hearing of this matter agreed was correct at the time in as much as it was based upon the available evidence, both medical and otherwise, at that time.

However, since that time a MRP has rendered a very thorough opinion which has clearly shown that the medical opinions in existence at that time were not adequate in so far as disclosing the real medical condition of the claimant and his restrictions. The MRP decision rendered on December 28, 2000, confirmed that the claimant suffered from a rotator cuff strain in the accident of July 13, 1995. The Panelists were unable to establish the presence of any relevant pre-existing condition which was present at the time of the accident. They were also of the view that when the claimant stopped working on February 17, 1998, it was due to an aggravation of a rotator cuff strain which was related to the July 1995 injury. Consequently, they were also of the opinion that the resulting surgery on June 1, 1999 was a consequence of the injury of July 1995 and was not due to some other event or cause.

The MRP also confirmed that currently the claimant is still demonstrating the presence of a chronic rotator cuff syndrome. This condition was present after the accident and had "been described repeatedly by other examiners up to the present." Even though the Panelists felt that there had been a partial recovery from the effects of the July 1995 injury, there was still evidence of tendonitis. This tendonitis, it was agreed by all, was the direct result of the rotator cuff strain and had been present since the July 1995 injury.

In discussing issue number one, counsel for the claimant agreed that it should be revisited to read the following:

"Whether the claimant's work related accident in July 1995 has resulted in any compensable restrictions."

In answer to this issue, the Appeal Panel is unanimously of the view that the claimant has compensable restrictions as a result of his July 1995 accident. According to the MRP, the claimant would have a permanent restriction regarding repetitive overhead lifting. We also note the medical report of the claimant's family physician dated October 21, 1997, wherein further restrictions were outlined including the following:

His restrictions preclude lifting his arm over the height of his shoulder.He is fit for driving duties at this time provided they do not involve any climbing or lifting of heavy materials. He is, therefore, unfit to return to his previous employment as a tanker driver as this involves climbing ladders onto the top of the truck. Likewise any driving work which could be offered to him would be on the understanding that he would not be moving the loads himself. He would, therefore, be suitable for driving bulk loads which are unloaded by others driving fork trucks.

The MRP findings support the claimant's contention that he has been hampered by the residual effects of the July 1995 compensable accident and that there are indeed necessary restrictions to his ongoing employment.

With respect to issue number two, the Appeal Panel is also of the opinion that the WCB should extend rehabilitation benefits and services beyond January 17, 1997. We have accepted the restrictions as outlined by the MRP and the claimant's physician. The extent of the rehabilitation assistance provided to the claimant previously has proven to be inadequate given the nature of the injury and the resulting restrictions. At the hearing of this matter, the claimant asked that benefits be awarded from January 17, 1997, to February 17, 1998. Given the weight of the evidence we are inclined to agree that this would be an appropriate period. During this period of time the claimant has demonstrated that he attempted to find employment in many different occupations and was unable to either obtain or keep employment due to his shoulder difficulties. We are more than satisfied that the claimant made many valiant efforts at employment during this period but was either not hired by prospective employers when they learned of his restrictions or was unable to maintain employment due to the continuing aggravation that the employment caused to his shoulder. We are also mindful of the fact that the claimant's job search area is limited due to being geographically located in northern Manitoba and Saskatchewan where he resides with his wife and children. His wife has gainful employment in this area and financially it has not made sense to the claimant to move beyond this geographical area.

Panel Members

K. Dunlop, Q.C., Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of August, 2001