The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

A non-oral file review was held on October 3, 2002, at the claimant’s request.

Issue

Whether or not the claimant is entitled to wage loss benefits for the period November 29, 2001 to December 18, 2001 inclusive.

Decision

That the claimant is not entitled to wage loss benefits for the period November 29, 2001 to December 18, 2001 inclusive.

Decision: Unanimous

Background

On October 12, 2001, the claimant was acting in the course of his employment when he fell and caught his right arm on a windowsill, wrenching and stretching his right shoulder. On October 15, 2001, the claimant was diagnosed with a right shoulder impingement. The Workers Compensation Board (WCB) accepted the claim and benefits commenced on October 13, 2001.

A WCB medical advisor reviewed the case on November 22, 2001. The medical advisor indicated that the claimant was capable of sedentary duties while awaiting the results of an MRI assessment.

On November 23, 2001, a WCB adjudicator spoke with the claimant. The claimant advised that he underwent an MRI examination on November 19, 2001 and was to see a specialist on December 5, 2001 regarding the results. The claimant said he was busy with physiotherapy treatments and was going to the gym. The claimant was advised that if his employer was able to accommodate him with modified duties then he was responsible to attend. If he chose not to perform the modified duties, then the WCB would be unable to cover any wage loss benefits.

File records revealed that a message was left on the claimant’s answering machine on November 23, 2001, asking him to contact the employer with respect to modified duties. The WCB also tried to contact the claimant by telephone on November 28 and 29, 2001, but without success. On November 29, 2001, primary adjudication advised the claimant that he was not entitled to receive time loss benefits as his employer had confirmed modified duties were available.

During a telephone conversation with his adjudicator on December 3, 2001, the claimant advised that he had seen a specialist on November 26, 2001 who confirmed that there was no tear of the rotator cuff according to the MRI results. The claimant received a cortisone injection and was told by the specialist not to do anything with his shoulder for 5 days. The claimant confirmed that he received the WCB’s letter of November 29, 2001 and that he had been busy arranging appointments and that he was going to the gym to try and stay in shape for a return to work at regular duties. The claimant indicated that he had moved up all of his appointments and had saved months of time loss. The adjudicator advised the claimant that she appreciated how proactive he was with the medical appointments, however modified duties were another issue.

Medical information confirmed that the claimant underwent an MRI examination of the right shoulder on November 19, 2001. The results of the MRI revealed widening of the AC joint which was likely related to a remote AC separation. There was no evidence of a rotator cuff tendonosis or tear.”

In a progress report dated November 28, 2001, the attending physician stated that the claimant’s right shoulder condition was improving. The claimant still had mild pain over the right rotator cuff with a positive impingement sign. He felt that after one to two weeks of physiotherapy treatments, the claimant would be ready for regular work duties by December 10, 2001. The physician commented that the claimant was capable of alternate or modified work that did not involve the use of his right arm for a two week period.

In a report dated December 5, 2001, the treating orthopaedic specialist noted that the claimant received significant pain relief from his cortisone injection to the right AC joint and subacromial space nine days prior. Some residual posterior shoulder pain still persisted. The claimant had good range of shoulder motion and good rotator cuff power. The claimant was going to go back to regular unrestricted duties by December 19th. The specialist further stated “There is no contraindication now to do sedentary duties, with shoulder restrictions, until return to regular duties. For whatever reason, the employee, and this is not the first I have encountered from this area, find the sedentary duties to be some sort of ‘make work endeavour’, preventing time better spent in other rehab. I do not want to become part of that non-medical conflict.”

On February 21, 2002, a union representative provided the WCB with correspondence received from the claimant’s orthopaedic specialist dated February 6, 2002 together with the request that the WCB reconsider its decision not to accept responsibility for wage loss benefits from November 29 to December 18, 2001. The union representative noted that the specialist stressed to the claimant that it would be preferable for him to continue with a conditioning program including physiotherapy and workouts. The specialist agreed with the claimant at the December 5, 2001 appointment, that the claimant should hold off returning to work until December 19, 2001. This left the claimant with the impression that he was not clear for regular duties as expressed in the adjudicator’s memo of December 12, 2001.

In a letter dated February 26, 2002, primary adjudication advised the union representative that the additional information provided by the orthopaedic specialist confirmed that the claimant was capable of performing sedentary duties as of November 26, 2001. It was primary adjudication’s opinion that the claimant could have continued his rehabilitation in conjunction with performing the sedentary duties. It was determined by primary adjudication that no change would be made to its previous decision concerning wage loss benefits.

In a memo dated March 8, 2002, a WCB sector manager documented a discussion that he had had with the claimant and his union representative. The sector manager ultimately determined that he would not change the previous decision.

In a submission to Review Office dated March 20, 2002, the union representative appealed the WCB’s decision not to accept responsibility for wage loss benefits between November 29 and December 19, 2001. In a decision dated March 24, 2002, Review Office confirmed that no responsibility would be accepted for wage loss benefits beyond November 28, 2001.

Review Office determined that there was no justification for the claimant to be off work beyond November 28, 2001. The employer had modified duties available which properly respected the claimant’s right shoulder condition. For whatever reason, the claimant chose not to participate in a return to work on modified duties. Review Office concluded that a compensable loss of earning capacity did not exist beyond November 28, 2001.

On July 8, 2002, the claimant appealed Review Office’s decision and requested a non-oral file review.

Reasons

On or about November 29th, and/or December 5th, 2001, both the attending physician and the treating orthopaedic surgeon indicated that the claimant was capable of returning to sedentary work duties, which did not involve the use of his right arm. The evidence confirms that the employer has a well-established return to work program that the claimant did not pursue. The employer and the WCB both attempted without success to contact the worker to encourage him to participate in the return to work program.

The evidence further confirms that the claimant was aware of his requiring to become involved in the modified work program and that his failing to do so would result in the termination of his benefits. In this regard, we note a memo on file, which records a conversation between the claimant and his case manager on November 23rd, 2001. The memo records in part as follows:
“I explained to claimant that at this point, we have to look at modified duties. At this point, due to injury, claimant is capable of sedentary duties. I will be trying to arrange with [the employer]. Claimant said that with physical therapy and going to the gym, he is pretty busy. I explained that if [the employer] can accommodate light duties, he is responsible for attending. If he chooses not to, WCB will be unable to cover wage loss. Claimant said he understood.”

Based on the weight of evidence, we find that the worker is not entitled to wage loss benefits for the period of November 29th, 2001 to December 18th, 2001 inclusive. Accordingly, the claimant's appeal is hereby dismissed.

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 12th day of November, 2002