Decision #52/03 - Type: Workers Compensation
Preamble
An Appeal Panel hearing was held on March 19, 2003, at the request of the claimant. The claimant was appealing a decision by the Review Office of the Workers Compensation Board (WCB) which determined that he was not entitled to wage loss benefits beyond August 21, 1996.Issue
Whether or not the worker is entitled to wage loss benefits beyond August 21, 1996.Decision
That the claimant is entitled to wage loss benefits from August 21, 1996 to May 1997.Decision: Unanimous
Background
This case had been considered at the Appeal Commission on two previous occasions. For complete details surrounding the case, please refer to Appeal Panel Decision Nos. 173/97 and 58/01.On May 23, 2001, the Appeal Panel made the following determinations:
- "The worker's left shoulder problems are related to the compensable injury of October 26, 1994;
- This injury was an aggravation of a pre-existing condition with his shoulder;
- The operation on his shoulder in March 1996 was justified and related to the compensable injury and should be covered by the Board;
- The matter is referred back to the Board to determine the degree of and length of the period of loss of earning capacity due to the accident."
On September 18, 2001, the claimant was informed by the WCB that he was entitled to wage loss benefits commencing June 12, 1995. This was the date that the claimant was diagnosed with tendonitis and when he was referred for physiotherapy treatments. Wage loss benefits were to conclude on August 21, 1996, the date upon which the treating physiotherapist found that the claimant had full range of movement and improved strength in his shoulder.
The WCB case manager also made reference to when the claimant resumed physiotherapy treatment in January 1997 because of increasing left shoulder symptoms. It was felt, however, that the claimant's ongoing symptoms and need for physiotherapy were not related to the October 26, 1994 compensable injury but was due to his pre-existing shoulder condition, namely, "degenerative acromioclavicular joint changes with a Type II acromion". On December 4, 2001, the claimant appealed this decision to Review Office stating that he should have been paid to at least August of 1997.
On February 22, 2002, Review Office determined that the claimant was not entitled to wage loss benefits beyond August 21, 1996.
Review Office noted that it was the claimant's opinion that he was entitled to additional wage loss benefits as he received no assistance from the WCB in finding a job once he was capable of working. The claimant pointed out that when he did return to work he had to take a lower paying job. Review Office noted that there was no additional medical evidence submitted which was not considered by the Appeal Panel in arriving at its decision of May 24, 2001 (Decision No. 58/01).
Review Office concluded that it was the Appeal Panel's intent to provide wage loss benefits only to May 7, 1996. Review Office was unwilling to authorize any further wage loss benefits as it believed that to do so would not be in keeping with the intent of the Appeal Panel's May 24, 2001 decision. On February 4, 2003, the claimant appealed Review Office's decision and an Appeal Panel hearing took place on March 19, 2003.
Reasons
The Appeal Panel has determined after a great deal of thought that the claimant continued to be disabled until he was able to find full time work in the later part of May 1997. This decision is made after reviewing the balance of the evidence on the claimant's file. We were particularly swayed by the oral evidence presented at the hearing of this matter on March 19, 2003 which is supplementary to all other documentary evidence on the claimant's file. On the basis of this evidence combined with the medical information on file, this Panel has concluded that the worker had not recovered from his compensable left shoulder injury by the time his benefits were cut off on August 21, 1996.The claimant testified at the hearing of this matter, that on January 27, 1997 he recommenced physiotherapy at the request of his surgeon. This physiotherapy has continued on and off until March 20, 2001. In her report dated March 20, 2001, the physiotherapist confirmed that initially the surgeon had advised the claimant to take the summer of 1996 off without trying to go back to work. This may be why the previous Appeal Panel felt that the claimant could return to work by August of 1996. In addition, that Panel may have relied upon the reports of the physiotherapist which indicated that the claimant had shown a plateau in August 1996 with range of motion almost full and improved strength. This, however, changed after the summer. As the physiotherapist goes on to explain in her report, the claimant returned to her treatment at the request of his surgeon in January of 1997 after not having been able to return to work due to continuing problems. According to the report of the physiotherapist, the surgeon at that time advised that "he did not think [the claimant] would return to work or be completely pain free."
On her examination at that time in January 1997, the physiotherapist found the following:
"Mr. [the claimant] was experiencing increased snapping and pinching pain with flexion and abduction movement. He had not returned to work and was experiencing high blood pressure, which was felt to be related to stress. Upon examination Mr. [the claimant] had pain with lowering of flexion and abduction and poor eccentric control of his scapular muscles. His strength had decreased, abduction was grade 4-/5 with pain and external rotation grade 3+/5.Further documentary evidence on the file to substantiate the claimant's ongoing difficulties and to lend credence to his argument that he had not recovered from the compensable injury until at least May of 1997, can be found in the notes of the WCB case manager after her discussion with the WCB medical advisor. In those notes dated August 11, 2001, the WCB case manager confirmed her conversation with the WCB medical advisor which state the following:
He had pain with the Hawkins impingement test and tightness in his posterior capsule. Treatment was resumed twice per week and further strengthening exercises were shown and stretches for the capsule were given. By the end of February Mr. [the claimant's] pain had decreased and strength had increased. However prolonged reaching overhead was still somewhat painful. On February 27, 1997 Mr. [the claimant] reported that he got a job as a janitor at a church 20 hours per week. It was felt his range of motion was full and strength had increased and he could continue with his home exercises.
Mr. [the claimant] has not attended for any further treatment since February 27, 1997. At the time of discharge it was felt that Mr. [the claimant] was left with a permanent dysfunction in his left shoulder for activities requiring prolonged repeated overhead activities."
"…when fitness to return to work was discussed, it was felt the claimant had recovered from CI [compensable injury] and aggravation in February 1997"This evidence is further substantiated and extended by the oral evidence of the claimant and his witnesses at the hearing of this matter. The claimant testified that throughout the later part of 1996 and the early part of 1997, he attempted to return to work at his former occupation but was not hired as it was felt that he had a disability and was not capable of doing the work. However, in order to get back to some kind of work, the claimant took a job as a part-time janitor at a church. He continued to work at this job from March of 1997 to April of 1999. Finally, in mid May of 1997, the claimant secured further part-time employment with [company's name] resuming his pre-accident type of employment. This job became full time in August of 1997.
At the hearing of this matter, the Chair of the Personnel Committee at the church where the claimant began to work in March 1997, testified, that he personally witnessed the claimant working on many occasions and it was his opinion that the claimant was having a great deal of physical difficulty completing some relatively simple tasks such as changing light bulbs. He observed the claimant in a lot of pain simply mopping the floor or doing any work that involved a lot of shoulder movement. This continued well into the later part of 1997.
Three other witnesses appeared on the claimant's behalf, all of whom testified that after the claimant returned to his original occupation as a lather by trade, he continued in a great deal of pain. As there is very little that a lather can do in his trade without reaching over and above his head, these witnesses testified that the claimant always needed help at work to complete his tasks when using his left shoulder to do overhead work. According to all the witnesses called, the claimant was still demonstrating pain for several years after his surgery when he had to lift his hands over his head.
Accordingly, the Panel is of the unanimous view that there is both the medical and the oral evidence on file that would suggest that the claimant had not recovered from his left shoulder compensable injury until at the very least he returned to his old job as a lather in May of 1997. It was at that time that the claimant demonstrated that he could return to work, working two different jobs, as long as he was accommodated at work.
Panel Members
K. Dunlop, Q.C., Presiding OfficerP. Challoner, Commissioner
W. Leake, Commissioner
Recording Secretary, B. Miller
K. Dunlop, Q.C. - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 14th day of May, 2003