The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on October 16, 2001, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on October 16, 2001.

Issue

Whether or not the claimant is entitled to the payment of wage loss benefits beyond January 19, 2001 in relation to the compensable shoulder injury of December 15, 2000.

Decision

That the claimant is entitled to the payment of wage loss benefits from January 19, 2001 up to her return to the boxing job on February 21, 2001, in relation to the compensable shoulder injury of December 15, 2000.

Background

On December 15, 2000, the claimant stated she was placing hams in "combo" for the ham line, when she thew one ham and her right shoulder felt like she broke it. The claimant indicated that she went to see the company nurse as well as her physician because she wanted to stay at work. The claimant was provided with light duties, however, her condition gradually became worse so she went to see another general practitioner on January 10, 2001.

In speaking with the claimant on February 2, 2001, a Workers Compensation Board (WCB) adjudicator noted the following information:

• there was no specific accident on December 15, 2000, but around 9:00 a.m. the claimant started to have right shoulder pain. After seeing the company nurse and physician, the claimant was provided with light duties in the quality assurance area, which involved walking around inspecting totes of meat and checking for blood clots, bone chips, cartilage, etc.
• the claimant performed one week of quality assurance duties and then was aligning hogs to be cut. Hogs were hanging upside down and you aligned them using the hog's front legs. The claimant performed the aligning duties until January 10, 2001, however, her right shoulder condition gradually became worse and she saw a doctor for treatment.
• on January 19, 2001, the claimant returned to work making boxes and throwing them down a chute for a full shift. As she couldn't move her shoulder on January 20, 2001 she did not go into work. The claimant said she attended physiotherapy three times per week commencing January 18, 2001.
• the claimant advised the WCB adjudicator that she hoped to return to work on February 5, 2001 on light duties. The claimant indicated that her right shoulder was stiff but she could still move it. The claimant also indicated she was getting headaches.
• the claimant was claiming wage loss benefits effective January 10, 2001 onward, less one day she worked on January 19, 2001.

Medical documentation on file revealed the following:

• on December 15, 2000, the attending physician noted that the claimant had right shoulder and an upper back ache. The diagnosis rendered was right rotator cuff strain. In a follow-up appointment on December 28, 2000, the claimant still complained of aching between her shoulder blades, however her shoulders ached less. The physician suggested that the claimant permanently transfer to light duties, i.e. to avoid lifting greater than 15 pounds.
• on January 10, 2001, a second treating physician noted that the claimant experienced increased pain and was unable to continue working turning hogs. Physiotherapy was prescribed. The diagnosis rendered was rotator cuff tendonitis. When seen for examination on January 18, 2001, the claimant was still sore with some thoracic pain. There was slight tingling into the 4th and 5th fingers along with sleep disturbance. Restrictions outlined were to avoid lifting greater than 5 pounds and to avoid repetitive movements at or above chest level.
• on February 16, 2001, the first attending physician noted that the claimant had full range of motion in her back. The right shoulder grinded when elevated and was somewhat painful. The physician indicated that the claimant could make boxes and was to avoid lifting over 15 pounds.
• on February 20, 2001, a WCB medical advisor reviewed the file and commented that the claimant was not totally disabled and should avoid working at chest level or with heavy weights.

After speaking with the employer on February 26, 2001, a WCB adjudicator documented that the claimant had gone to the nurse's office and advised that she kept forgetting her right arm/shoulder was sore and that she was using it at work. The nurse placed the claimant's right arm in a sling so that the claimant would avoid using her right arm. Notice was taken that the claimant returned to work on February 21, 2001 which entailed placing empty boxes down a chute. The boxes came on a pallet and were piled higher than chest level. The claimant used her left arm to bring the boxes down and put them into the chute.

In a decision dated February 26, 2001, primary adjudication determined that suitable modified duties had been made available to the claimant, however, as of January 22, 2001, she chose not to participate in the modified duties. The WCB would, therefore, only pay wage loss benefits for the period of January 11, 2001 to January 18, 2001, inclusive and final. It was felt that any time loss beyond January 19, 2001 could have been avoided as the employer had modified duties that were within the claimant's restrictions. On March 26, 2001, a union representative, acting on behalf of the claimant, requested Review Office to reconsider the adjudicator's decision of February 26, 2001.

In a decision dated April 6, 2001, Review Office determined that the claimant was not entitled to wage loss benefits beyond January 19, 2001 with respect to her December 15, 2000 shoulder injury.

Review Office was of the opinion that the alternate duties provided by the claimant's employer were within her capabilities subsequent to January 19, 2001. Review Office noted that on January 18, 2001 the attending physician felt that the claimant was capable of alternate employment with the avoidance of lifting greater than 5 pounds and the avoidance of repetitive movement of the right shoulder above chest level. The alternate duties provided to the claimant respected these restrictions. Review Office noted that the claimant laid off work on January 20, 2001 and that she had delayed in seeking medical attention until February 2001. Medical information subsequent to January 18, 2001 did not support total disability from work. On May 14, 2001, a union representative appealed Review Office's decision and an oral hearing was arranged.

Reasons

As the background notes indicate the claimant suffered a right shoulder injury on December 15th, 2000. In accordance with the employer's return to work program, the claimant was immediately offered modified work duties. The claimant experienced no difficulty in performing the work that was initially assigned to her, as the job tasks did not require the use of her right shoulder. Unfortunately, however, the claimant was not allowed to continue with these duties, as she was merely covering for another employee, who was absent from work.

The claimant's next assignment required the use of physical force in order for her to do the job. These new duties caused further problems to her right shoulder condition. The claimant encountered difficulty in obtaining an immediate appointment with her treating physician, so the employer made arrangements for her to be examined by another physician on January 10th, 2001. He diagnosed the claimant's right shoulder condition as rotator cuff tendonitis. In his opinion, the claimant was not capable of alternate or modified work duties at this time. A follow-up examination with this same physician took place eight days later on January 18th. He determined that the claimant's condition had improved and that the claimant was capable of alternate or modified work with the accompanying restrictions of no lifting greater than 5 pounds and no repetitive movement of the right shoulder above chest level.

The next day the claimant returned to work and performed alternate employment duties, which consisted of making boxes and throwing them down a chute. This particular job called for the claimant and a co-worker to assemble 2200 boxes per shift. After working a regular shift as a boxer, the claimant regrettably encountered increased shoulder difficulties that necessitated time loss from work.

According to the evidence presented at the hearing, this boxing job required significant ranges of motion of both arms and was physically more demanding than what was described on file by the accident employer. We find, on a balance of probabilities, that the boxing job duties assigned to the claimant were outside of her January 18th, 2001 restrictions. The physician, who imposed these restrictions, examined the claimant once again on February 16th, 2001 and determined that the claimant was capable of performing the modified work duties of assembling boxes as long as she avoided lifting greater than 15 pounds. We note that the claimant did return to the modified job duty as a boxer on February 21st, 2001. After having considered all of the evidence, we further find that the claimant is entitled to the payment of wage loss benefits beyond January 19th, 2001 up to her return to the boxing job on February 21st, 2001.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

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

Signed at Winnipeg this 7th day of November, 2001