The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on July 25, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on July 25, 2001.

Issue

Whether or not the worker is entitled to wage loss benefits beyond October 23, 2000.

Decision

That the worker is not entitled to wage loss benefits beyond October 23, 2000.

Background

In September 1997, the claimant submitted a claim for compensation benefits indicating that he experienced problems with his left shoulder in August 1997 which he related to his employment activities as a labourer in a meat processing plant. The diagnosis rendered by the attending physician on August 27, 1997 was tendonitis/strained left shoulder. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid between September 30, 1997 and October 28, 1997. On October 29, 1997, the claimant returned to light duties with restrictions to avoid lifting above chest height, no pushing loads and no repetitive use of the left shoulder.

Due to ongoing shoulder pain, an orthopaedic surgeon assessed the claimant in February 1999. The orthopaedic surgeon was of the opinion that the claimant likely had a chronic rotator cuff tendonitis with AC joint irritation and a left shoulder scope, acromioplasty and resection of the distal clavicle was recommended. The claimant subsequently underwent this procedure on April 12, 1999 which was accepted as WCB responsibility.

In a follow-up report dated August 23, 1999, the orthopaedic surgeon indicated that the claimant had ongoing pain in the shoulder with clicking related to the left AC joint. A previous attempt at a diagnostic injection into the AC joint did not alleviate his symptoms and in fact he had had increasing clicking since that time. The surgeon indicated that the prognosis, four months post-surgery, was not good for returning to any heavy overhead activity. No further injections or further treatment was planned at present and a reassessment would be done in 3 month's time.

A WCB medical advisor assessed the claimant on September 27, 1999. He believed that the claimant was slowly recovering from his left shoulder acromioplasty. The examination revealed slight limited range of motion of the left shoulder and weakness of the supraspinatous muscle. The medical advisor believed that the claimant was likely recovering from his rotator cuff tendonitis. It was also noted that similar findings were found on the right shoulder likely based on a similar mechanism of injury as in the left shoulder. The medical advisor felt that the claimant was fit for modified duties and that a scapular stabilization program followed by reconditioning/work hardening program was in order.

Subsequent medical information revealed that the claimant underwent acupuncture treatment between October 1999 and February 2000 and a functional capacity evaluation on July 21, 2000.

On September 7, 2000, primary adjudication confirmed to the claimant that a reconditioning program was being arranged and at the completion of the program, he would be considered fit to return to his pre-accident duties without restrictions. The letter also confirmed that arrangements were being arranged for the claimant to attend three workshops at the WCB and that wage loss benefits would end on October 20, 2000.

In November 2000, the claimant contacted the WCB stating that he was not feeling any different than when he first started the reconditioning program. The claimant advised that he had more range of movement in his shoulder but still had the same level of pain. File documentation further revealed that the claimant's employment with the accident employer had been terminated.

On January 26, 2001, a union representative disagreed with the WCB's decision that the claimant had recovered from the effects of his compensable injury and to discontinue benefits as of October 20, 2000. In support of her position, a report was submitted from an occupational health physician dated January 18, 2001.

Prior to considering the appeal, Review Office sought medical advice from a WCB orthopaedic consultant on February 22, 2001.

In a decision dated February 23, 2001, Review Office determined that the claimant was not entitled to wage loss benefits beyond October 23, 2000. Review Office stated that the evidence indicated that the claimant terminated his employment with the accident employer on March 31, 1999 and did not have a job to return to. The claimant confirmed that the employer had provided him with modified work after he initially returned to work in October 1997.

Review Office noted that the medical reports from the physiotherapist who treated the claimant between March 2000 and June 2000 revealed similar range of motions and strength in the left shoulder when compared with the right. This suggested to Review Office that the claimant had made an almost complete functional recovery from his compensable injury.

Review Office also took into consideration the opinion from the WCB orthopaedic consultant that the imposition of work restrictions due to the compensable injury was not advisable. "Given the accident employer's proven history of providing modified duties on this file, and the relatively minor residual physical effects of the compensable injury, Review Office believes that the predominant reason for this worker's ongoing loss of earning capacity is his decision to terminate his employment with the accident employer. As such, Review Office confirms that the worker is not entitled to wage loss benefits beyond October 23, 2000." On April 2, 2001, the union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

This is a case of a worker who sustained an injury to his left shoulder in August 1997. He experienced difficulties in his right shoulder while compensating for his injury of the left shoulder. The Workers Compensation Board (WCB) accepted responsibility for the shoulder difficulties and paid benefits for the period Sept 30/97 to October 28/97. The WCB again accepted responsibility for this claim on April 12, 1999 following an acromioplasty and resection of the distal clavicle of the left shoulder which was found to be related to the original compensable injury. Ultimately, benefits terminated as of October 23, 2000 when it was determined the worker could return to his pre-accident duties. The claimant is appealing the decision to terminate his wage loss benefits and is seeking wage loss benefits after October 23, 2000.

For this appeal to be successful the panel would have to determine that the worker continues to have a loss of earning capacity as a result of non-recovery from his 1997 compensable accident. We were not able to come to this conclusion.

In reaching this conclusion, we have heard a oral submission from the claimant's union representative, the employer's representative and oral evidence from the claimant. We also relied on the following medical evidence which notes a steady improvement in the claimant's condition after the surgery.

We reviewed the orthopedic surgeon's follow up examination of the claimant in August 1999 where he noted that x-rays show adequate resection of the bone. He noted then that "His prognosis now, four months post surgery, is not good for returning to any heavy overhead activity. This would include overhead lifting, static overhead positions or repetitive activity involving the left arm." The surgeon indicated he would follow up in three months time. The November 1999 follow up report says, in part, "I do not think that further active intervention is warranted in this man. His situation remains the same."

A WCB medical exam was arranged for Sept 27/99.The examination revealed decreased range of movement on both sides. The WCB medical advisor indicated the claimant is slowly recovering from his left shoulder acromioplasty in April 1999. He further stated "The examination today revealed slight limited range of movement of the left shoulder and weakness of his supraspinatus muscle. I believe the claimant is likely recovering from rotator cuff tendonitis. It should also be noted that similar findings were demonstrated on the right shoulder likely based on a similar mechanism of injury as in the left shoulder." The WCB medical advisor recommended the claimant should be referred to another scapular stabilization program followed by a reconditioning/work-hardening program. He felt the claimant has a reasonable prognosis in returning to his pre accident occupation.

At that point, the claimant was noted to be fit for modified duties with restrictions of avoidance of repetitive movement of both shoulders, especially overhead lifting and static overhead positions of both shoulders. The restrictions were to be in place for a 6-month period.

The claimant underwent a series of acupuncture treatments in late 1999 and early 2000. The Doctor who performed the acupuncture noted on February 9, 2000 "As to objective findings, his range of motion of the shoulder has improved. He now has full flexion. Abduction is still restricted about 150 degrees. Internal rotation and external rotation are about half range". This physician recommended that the claimant would benefit from a reconditionditioning program.

The claimant was then provided with physiotherapy treatment. The May15/2000 report from the physiotherapist who performed the physiotherapy program indicated "[the claimant] has shown good gains in both his strength and range of motion as well as in scapular stability. He has been very self motivated with his programming as treatment has consisted of the introduction of the appropriate exercises with review and progression as needed."

The same physiotherapist provided a report of the reassessment results of June 14,2000. She noted " Patient has improved scapular stability especially with shoulder flexion and abduction. There is muscle tightness of the left pectoralis major, shoulder extensors, upper fibers of the trapezius and levator scapula. The claimant has been instructed in a home upper extremity stretching, strengthening and stabilization program with focus on the shoulder/shoulder girdle complex."

A functional capacity report dated July 31/00 outlines that the claimant did not complete the functional capacity protocol. Several inconsistencies made the FCE non-interpretable. A reconditioning program followed.

The reconditioning therapist on October 23, 2000 noted that the claimant worked very hard and was motivated. She indicated that the claimant has better range of motion and strength at his shoulders He was noted to have better overall strength and fitness. She recommended that claimant return to work with restrictions.

We note that the worker did not have a position to return to at Maple Leaf Foods. He had voluntarily left his position in early 1999. The employer had previously accommodated the claimant prior to the worker accepting a company voluntary severance package. Because this accommodation of modified work was not an option in the fall of 2000, the WCB offered the claimant some transitional services. Three workshops were offered prior to his reconditioning program in order to assist him in a job search. The claimant completed the workshop on interview skills on September 14 & 15, 2000. He advised his case manager that he felt this course would equip him with the skills to secure employment.

The claimant in his evidence advised the panel that he has a resume but has not applied for any employment. He had fears of re-injuring himself. He advised the panel he was hopeful of the WCB assisting him in a rehabilitation training program but could not provide any cues as to what careers or jobs he was interested in. The panel notes that while the claimant may have a fear of re-injury, there is no medical basis to justify the claimant's perceived total disability.

The claimant was asked about home exercises and medical treatment for his condition. He is aware of the recommended exercises but has not been following any kind of a regular routine for stretching or strengthening while he is at home. He did comment that he did notice improvement as a result of his physiotherapy treatments. The panel notes he has seen several physicians since the termination of benefits and they recommend self care and have not provided further referral to deal with the claimant's complaints of pain.

The employer's representative confirmed that the claimant had returned to modified duties following his WCB claim in September 1997. The claimant was able to work from October 29/97 until March 1999 with restrictions. The claimant chose to accept a severance package with the employer and therefore left his employment in early 1999. The employer's representative informed the panel that even though workers left the employ of the company under the severance package, they were entitled to continue to work for the employer. In the claimant's situation, modified duties would still have been available for him. It is the employer's position the claimant chose not to return to work with the company even though this would have been an option in addition to accepting the severance package.

The panel reviewed the claimant's mechanism of injury, medical surgical intervention, post surgical interventions (acupuncture, physiotherapy, and reconditioning) and transitional services offered by the Workers compensation board. We also considered the obligation of the claimant in his responsibilities to mitigate the consequences of the accident. Policy 44.10.30.60 Adjudication and Compensation Practices Delaying Worker's Recovery states under worker's responsibilities that "Workers are responsible for taking reasonable steps to assist in their own recovery from the effects of a compensable accident, and for refraining from actions or inactions that will have a negative effect on that recovery." We are of the opinion the worker was progressing well through his various therapies, and along with the assistance from the WCB to assist in finding new employment he was under an obligation to initiate a job search. He has chosen not to follow that path.

We find that the claimant had achieved excellent progress in treatment and the reconditioning program and was able to return to work at the very least to the modified duties available with the pre-accident employer. We conclude therefore that the claimant does not suffer a loss of earning capacity as a result of the accident after October 23/2000 and is not entitled to wage loss benefits. His appeal is therefore denied.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 15th day of August, 2001