Decision #46/03 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on February 11, 2003, at the request of a union representative, acting on behalf of the claimant. The Panel discussed this appeal on February 11, 2003, March 12, 2003 and again on April 3, 2003.

Issue

Whether or not the claimant is entitled to wage loss benefits beyond September 7, 2001.

Decision

That the claimant is not entitled to wage loss benefits beyond September 7, 2001.

Decision: Unanimous

Background

In October 1999, the claimant reported injuries to her right shoulder and neck from an incident that occurred at work on September 13, 1999. The claimant described her injury as follows: "Pain in right shoulder for over one month, moved liner approx. 200 lbs. with my shoulder and it pulled really bad. Worked until the pain was too unbearable." The initial diagnosis rendered by the attending physician was a right shoulder strain and physiotherapy treatments were arranged. The claim was accepted by the Workers Compensation Board (WCB) and benefits were paid accordingly.

In a sworn statement to the WCB dated November 1, 1999, the claimant said that she had fallen down a flight of stairs at home and that her right elbow struck the wall and that she slid down the stairs on her butt. She felt a pulling sensation in her left shoulder and her right shoulder was a bit worse after the incident.

On November 8, 1999, an orthopaedic specialist diagnosed the claimant with right shoulder bursitis and treatment included an injection into the right shoulder. The specialist reported that the claimant should be able to resume work within a week's time.

The claimant was assessed on December 3, 1999 by a WCB physical therapy consultant. The claimant presented with resolving mechanical neck dysfunction and regional muscular discomfort around the right scapula and arm. The right shoulder examination was considered normal as was neurological testing. Based on his assessment, the physical therapy consultant felt that the claimant was not totally disabled.

During 2000, the claimant attempted a return to work but experienced further difficulties with her right shoulder. She was treated by her family physician, an acupuncturist and with physiotherapy. In July 2000, the claimant was assessed by a sports medicine specialist and was diagnosed with "cervical myofascial pain - post injury - now radiculopathy".

Following an examination of the claimant on December 13, 2000, a WCB medical advisor reported that the claimant did not have a specific muscular problem involving the rotator cuff. The claimant may have a shoulder girdle strain/sprain phenomenon involving the levator scapulae, the medial scapular wall musculature and the rhomboids.

On January 25, 2001, an MRI of the spine revealed "very minimal right paracentral C5-C6 and C6-C7 disc herniation."

The claimant was assessed by a chiropractor on March 2, 2001. The diagnosis rendered was right cervical and right rotator cuff strain with neuralgia of the right arm.

On May 1, 2001, EMG and Nerve Conduction studies did not show any evidence of recent denervation. "There was a mild increase in polyphasic motor unit potentials both in the triceps and biceps suggesting a previous C6 root lesion. The patient has localized muscular pain in the right pectoralis which may be associated with her parasthesia."

A WCB chiropractic consultant reviewed the case on August 16, 2001 and was of the view that the claimant could return to a graduated return to work program. In a memo to file dated August 22, 2001, a WCB adjudicator noted that the claimant had no job to return to as she had been laid off.

On August 29, 2001, primary adjudication determined that wage loss benefits would be paid to September 6, 2001, inclusive and final. Based on the weight of evidence, history of injury, diagnosis, subsequent investigations and current clinical findings, it was concluded that the claimant had essentially recovered from the effects of her work related injury.

On November 1, 2001, a WCB adjudicator recorded that the claimant was working with a different employer and was experiencing great difficulty with her shoulder area. The claimant said she had been taken off work by her chiropractor.

On March 20, 2002, a union representative advance the argument that the claimant had not recovered from the effects of her compensable injury and reference was made to a December 3, 2001 report prepared by a sports medicine specialist and an occupational health physician dated February 14, 2002.

Prior to considering the above submission, additional information was obtained from the treating chiropractor and an opinion was sought from a WCB chiropractic consultant on July 9, 2002.

In a letter to the union representative dated July 11, 2002, primary adjudication indicated that no change would be made to its previous decision based on the following factors:
  • the claimant had no position to return to as she was laid-off on October 18, 2000;

  • the treating sports medicine specialist could not correlate all of the claimant's symptoms to the 1999 injury, according to his December 3, 2001 report.
In decision dated September 27, 2002, Review Office noted that it requested a follow-up report from the claimant's treating physiatrist and that it sought the medical advice of a WCB orthopaedic consultant on September 19, 2002. Review Office concluded that it was unable to associate the worker's present and ongoing complaints to the reported incident of September 1999. Hence, it did not believe that the worker was entitled to wage loss benefits beyond September 7, 2001. Review Office noted that there were a number of reports on file which indicated that the claimant did not have much in the way of functional impairment preventing her resumption of employment activities. Specific reference was made to the findings of an orthopaedic specialist, who examined the claimant on November 5, 1999, the physiotherapist's examination report of December 3, 1999, the May 10, 2000 exam by the acupuncturist and the December 3, 2001 report by the sports medicine specialist. On December 4, 2002, the union representative disagreed with Review Office's decision and an oral hearing took place on February 11, 2003.

Following the hearing and discussion of the case, the Panel decided that additional information should be obtained from the accident employer concerning the period of time that it was in a lock-out/lay off situation. A response was later received from the accident employer dated February 24, 2003 and was forwarded to the claimant and her union representative for comment.

On March 12, 2003, the Panel met further to discuss the case and it was decided that both the employer and the union representative would be provided with a copy of WCB Policy 43.20.20, Modified and Alternate Return to Work with the Accident Employer. They were both asked to pay particular attention to B.5 of the policy and to provide the Panel with their thoughts as to its applicability to this case. Responses from both parties were later received. On April 3, 2003, the Panel met again to discuss the case and render its final decision with respect to the issue under appeal.

Reasons

WCB policy 43.20.20 provides in part as follows:

“If a worker doing modified or alternate work experiences a change in job requirements, lay-off, shutdown, lockout or strike, the worker may be eligible for additional benefits. When the WCB determines whether the worker is eligible for additional benefits, it will consider whether there is a loss of earning capacity and, if so, whether or not it is due to the injury.

The WCB recognizes that when the work is interrupted due to economic conditions (labour issues or other factors that affect all workers), the initial loss of earning capacity is not due to the injury. If the worker is expected to return to the previous employment in a reasonable time period, the worker is not at a disadvantage compared to other workers at that workplace who are experiencing a loss of earnings.

If the work interruption becomes prolonged to the point where similarly employed workers are pursuing other employment opportunities, and the injury places the injured worker at a competitive disadvantage in the general labour market, then the WCB will determine whether there is further entitlement to wage loss benefits and/or rehabilitation services.”

The employer submitted written evidence as to the claimant’s status during the period in question. “Return to work programs during the Lockout and Lay off were not offered to Ms. [the claimant], as during the Lockout period no employees were working in the plant at [name of employer] and during the Lay off periods, due to lack of sales orders, there was no work available for Ms. [the claimant] or any of the laid off employees.”

We find based on the evidence and the policy that the claimant’s loss of earning capacity was not due as a result of her injury but rather due to economic lay off. In addition, we also find that the claimant was not competitively disadvantaged, inasmuch as she was able to secure full time employment during the layoff commensurate with her transferable skills. Therefore, the claimant is not entitled to wage loss benefits beyond September 7th, 2001. 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 2nd day of May, 2003

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